NELP's Case for Reforming Background Checks for Employment

The National Employment Law Project (NELP) released an interesting publication titled "The Case for Reforming Background Checks for Employment" (hereafter The Case). The Case can be found here

http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1

The publication focused on employers expressly excluding any applicants with a criminal record, thereby creating exposure relative to Title VII. Following are highlights from several sections of the publication.

Shutting Workers with Criminal Records Out of the Job Market Compromises the Economy and Public Safety:

The article cites a study completed in Illinois which concluded recidivism (multiple criminal offenses) is decreased when individuals are engaged in a steady employment relationship. The study followed 1,600 individuals released from state prison. Those individuals who were employed for a year had an 8% recidivism rate, compared to the state average of 54%. While certain positions should require the applicant to pass a criminal background check, blanket restrictions could have a negative impact on public safety by increasing the likelihood of repeat offenses.

Beyond the public safety argument, this section of The Case draws attention to the economic impact of creating a large population of unemployable citizens. The authors of the report note the strain on the economy in terms of the cost of incarceration and the reduced productivity of these individuals.

Overly Broad Hiring Restrictions Run Afoul of Federal Laws Regulating Criminal Background Checks for Employment

The EEOC has been explicit about the disparate impact of utilizing criminal records as a means of employment selection. While the EEOC has not prohibited the use of criminal records, it has provided guidelines regarding the use of those records.

The EEOC recommends that employers complete an individualized assessment of each case, focusing on the nature and gravity of the offense(s), the time that has passed since the conviction and/or completion of the sentence, and the nature of the job held or sought.

To add to the constraints from the EEOC, the publication cites that FBI background checks are out of date 50% of the time. The article goes a step further to point out that commercially produced background checks have been found to be rife with inaccuracies.

The Case cites a statement from the EEOC's Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), Feb. 4, 1987, which provides clear guidance that, "an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII"

Wave of Lawsuits Documents Routine Civil Rights and Consumer Protection Violations:

The publication cites five major cases filed in 2010 regarding the misuse of criminal background checks to deny employment. One of the employers cited was the US Census Bureau.

Another case cited was the investigation of RadioShack for denying employment to an applicant who answered "yes" to a question about being convicted of a crime in the previous 7 years. The sobering part of this case is that ChoicePoint, a leader in the background check industry accounting for 20% of the market share, helped RadioShack establish the discriminatory practices.

What to do?

The Case goes on to recommend legal changes to help eliminate the issues brought up in the publication. In the meantime, employers should avoid blanket rules with regard to background checks. At a minimum, keep the EEOC guidance in mind and review each case based on the following:

- The nature and gravity of the offense(s);
- The time that has passed since the conviction and/or completion of sentence; and
- The nature of the job held or sought.

Of those three, the easiest place to start is the nature of the job held or sought. By eliminating background checks for those positions where it would be unnecessary, the employer can prevent much of the exposure associated with criminal background checks.

After establishing a case for completing criminal background checks on specific positions, the employer should review each applicants criminal history to determine if the record is sufficient to support prohibiting employment.

Works Cited:

http://www.nelp.org/page/-/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1