Employers commonly conduct criminal background checks, and may use such information to disqualify candidates for employment. For example, a pharmaceutical company may think twice before hiring someone it discovers has been recently convicted of a drug-related offense, while a bank obviously could decide that a convicted robber might not make a good teller. Failing to perform such “due diligence” could result in claims for negligent hiring too, where, for example, an employer fails to take steps to discover an applicant’s history of violent crimes, and that individual later harms another employee or member of the public.

Generally speaking, both California and federal laws permit inquiries about potential employees’ criminal convictions, and allow employers to reject candidates based on their criminal history is there is a legitimate basis for doing so. .However, the Equal Employment Opportunity Commission (EEOC) recently issued guidance in this area that underscores the importance of not automatically excluding employment to applicants with criminal convictions. Rather, to avoid liability, employers should weigh a variety of factors in determining whether a particular applicant’s criminal history disqualifies him or her from the position in question.

Individualized Analysis

The EEOC’s guidance serves primarily to underscore the importance of performing an “individualized assessment” before disqualifying job applicants based on their past criminal history. In other words, blanket disqualifications of individuals with criminal convictions, irrespective of the seriousness of the infraction, the nature of the job sought, or other factual circumstances, are unlawful. According to the EEOC, this is because statistics show that disqualifying applicants based on criminal history records has a disproportionately negative impact on African-Americans and Hispanics, such that even an employer’s neutral policy (i.e., disqualifying all applicants with criminal backgrounds) could unlawfully screen out individuals based on their race or national origin, in violation of anti-discrimination laws.

To limit potential liability, the EEOC recommends that employers consider a variety of factors when evaluating applicants’ criminal records, including the nature and gravity of the crime; the time elapsed since the offense; whether the applicant performed the same type of work, post-conviction, with no known incidents of criminal behavior; the specific nature of job sought; and any other information weighing on the individual’s fitness for the particular position.

In determining whether to exclude the applicant, the EEOC also suggests that employers give applicants the opportunity to explain the circumstances surrounding their conviction, including why they should not be excluded from employment. While the guidance concedes that some assessments will require less-detailed analysis than others (such as where the crime is closely related to the job), there is no “one-size-fits-all” approach. Rather, each applicant must be evaluated with regard to the particular job and facts involved.

Consistency is Key

The EEOC guidance similarly forbids facially discriminatory treatment of applicants with respect to their criminal histories. For example, the guidance highlights Title VII’s prohibition on treating applicants with the same or similar qualifications and criminal records differently because of race or national origin-such as, by choosing to hire a Caucasian applicant with a past drunk driving conviction for a sales position, while denying this same job to a similarly qualified Asian applicant with an identical conviction record.

To avoid discrimination claims, employers must likewise perform background checks on a consistent basis, treating all applicants who apply for a given job or class of jobs in a like manner, irrespective of applicants’ racial or ethnic backgrounds.

Arrest Records

The EEOC’s guidance takes a hard line approach to the use of arrest records, taking the position that arrests, by themselves, are not probative of criminal conduct. Specifically, the guidance states that “arrest record[s] standing alone may not be used to deny an employment opportunity.” This prohibition will not have a significant effect on California employers, who generally are already forbidden by the California Labor Code from using records of arrests that did not result in convictions in making hiring, promotion or termination decisions. (Of course, California employers make take such actions based on their own independent investigation of the circumstances surrounding the arrest.)

Employment Applications

As a “best practice,” the EEOC recommends that employers not ask any questions about criminal activity on job applications. Still, there may overriding reasons for employers to include such inquiries in employment applications. For one, asking an applicant to respond truthfully about his/her criminal history in an application gives an employer the opportunity to evaluate the job candidate’s overall credibility. If an applicant denies any criminal convictions in his application, but the employer’s subsequent criminal background check discloses otherwise, this may indicate a “red flag” regarding the candidate’s integrity.

At the same time, and to comply with the EEOC’s individualized analysis standard, employers should include language in their form employment applications explicitly informing job candidates that a disclosed criminal conviction “will not necessarily be a bar to employment.” Moreover, as noted above, employers must include language in their employment applications informing job applicants not to disclose information pertaining to arrests or detentions that did not result in criminal convictions. (California has very specific rules about this issue.) Also, because state law also prohibits the consideration of marijuana-related misdemeanor convictions that are more than two years old, employment applications must include language instructing employees not to disclose such offenses.

Applying the Principles in the Guidance

While the EEOC’s guidance is not legally binding, courts may view it as persuasive authority. Moreover, it reflects the EEOC’s enforcement position. So, California employers should pay close attention to the guidance’s restrictions and recommendations. Specifically, employers should ensure that their policies and practices are consistently applied and provide for an individualized assessment of the actual risks posed by an applicant’s criminal background. Moreover, decisions made on the basis of criminal history information should be documented to reflect a considered analysis of the job-related nature of the offenses and business necessity for excluding employment. Employers who are not prepared to conform to these standards should think twice before requesting such information. For additional information, a full version of the EEOC’s guidance may be viewed and downloaded at:

http ://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

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