Federal contractors who consider applicants’ or employees’ criminal histories in making employment decisions should take note. On January 29, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 306, addressing federal contractors’ use of criminal histories in hiring and employment practices.
Noting the disparate impact of arrest, conviction, and incarceration rates on Hispanics and African-Americans, Directive 306 states that hiring practices that exclude workers with criminal records may run afoul of federal antidiscrimination laws. Directive 306 adopts the Equal Employment Opportunity Commission’s Enforcement Guidance on the Consideration of Arrest and Conviction Records, effective April 25, 2012.
If an employer’s criminal records exclusion policy or practice has a disparate impact on protected individuals, the policy or practice must be job-related and consistent with business necessity. Specifically, the employer must show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. This can be done by validating the criminal conduct exclusion in accordance with the Uniform Guidelines on Employee Selection Procedure. Alternatively, the employer can consider three factors to determine whether a criminal conduct exclusion is job-related and consistent with business necessity: the nature and gravity of the offense; the time that has passed since the offense; and nature of the job held or sought. Such individualized assessment is recommended by the OFCCP.
OFCCP recommends that contractors, as a general rule, “refrain from inquiring about convictions on job applications.” But many employers maintain that criminal conviction histories are relevant to assessing qualification for the job. The important thing is for employers to not automatically exclude applicants based solely on an arrest record.