I spoke this morning at a roundtable discussion regarding the use of criminal record information obtained through background checks and also data privacy and security at a Human Resources Committee roundtable hosted by the American Council of Engineering Companies of Arizona. It was a fun group and a nice opportunity to chat over some breakfast and check out a charming venue in Phoenix that I had yet to see.
The topic of criminal background checks was fresh on my mind because I had just recorded a short video on the topic for a new segment I am including in my blog — Law in a Minute. I figured I spend so much time writing about social media (thank you, NLRB), that it is time to make the content of my blog a little more exciting and incorporate something new. With a little help from some colleagues – voilà – I have some short videos on a variety of employment law topics. So, when better than now to introduce the first video: a summary of the main points and best practices from the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.
The EEOC’s Questions and Answers (aka, the guidance for those who don’t want to read 40 pages) can be found here. Two main points to take from all of this: (1) a blanket exclusion of individuals with convictions (i.e., not permitting applicants to proceed if they were convicted in the past) likely violates Title VII — unless there is a federal law prohibiting employment to such individuals in the specific industry/job at issue; and (2) if there is evidence of a conviction, an individualized assessment is likely needed that takes into account (a) the nature of the crime; (b) the time elapsed; and (c) the nature of the job.