Awaiting Final Report on the EEOC Guidance on Criminal Background Checks

The Equal Employment Opportunity Commission (EEOC) is preparing a report for the White House and Congress on its recommendations for employers’ use of arrest and conviction information in employment decisions. Since publishing its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions in April 2012, the EEOC has received 300 comments on it. The majority of comments, 55 percent, oppose the guidance in whole or part.

One of the reasons the guidance is being opposed is because of the perceived protection it appears to give to criminal offenders, who are not a protected group under civil rights statutes. Another reason for opposition is the expanded burden the guidance places on employers to perform an individualized assessment of an ex-offender’s criminal record using criteria recommended by the EEOC before taking adverse action.

In a February 8 briefing on the report, the EEOC indicated that the comments will be included. Commissioners are expected to vote on the final report sometime in the next six months.

MSEC’s Pre-employment Screening Manager, Linda Kinter, has noted a 10 percent uptick over the past several months in MSEC members requesting criminal background checks. MSEC can play a key role in helping employers avoid any missteps with the EEOC and their new guidance, especially if there is a criminal record.