Federal Regulatory Alert From SHRM

On April 25, the Society for Human Resource Management (SHRM) issued a regulatory alert with regard to the Equal Employment Opportunity Commission's (EEOC) issuance of revised enforcement guidance on the consideration of arrest and conviction records in employment decisions.  In addition to the alert below, SHRM plans to offer a webcast on the new guidance and its impact on the workplace on Thursday, May 3 at 2 p.m. ET (90 minutes). Click HERE to register for the webcast.

The alert:

While it appears the guidance will tighten the criminal background screening process, employers will retain their right to consider criminal reports.

While SHRM has not fully reviewed today’s guidance, we are concerned that the EEOC guidance may conflict with state law requirements that employers must conduct criminal background checks on certain positions, such as health and child care employees and police officers. The guidance will apparently encourage (but will not require) employers to conduct an "individualized assessment" of the position in question. Furthermore, the guidance will not prohibit job applications that have a "check the box" for disclosing prior convictions (depending on how they are used). However, such boxes on applications may run afoul of the new guidance if they are used as a blanket screening tool on job applicants.

SHRM considers criminal background checks an appropriate tool to help employers make informed hiring decisions to ensure the safety and well-being of their employees and customers. SHRM has conducted national research that shows a majority of employers are thoughtful in the hiring process and do not take a one-size-fits-all approach to criminal background checks, as required by laws designed to prevent discrimination in hiring.

Specifically, SHRM’s 2010 survey on employer uses of criminal background checks showed:
73 percent of organizations conduct criminal background checks on all job candidates
19 percent of organizations conduct criminal background checks on selected job candidates
20 percent of organizations conduct criminal background checks on job candidates because they are required to do so by lawImportantly, the EEOC planned to issue additional guidance today on employer use of credit reports and reasonable accommodation under the Americans with Disabilities Act (ADA) of 1990. Both items were excluded from the EEOC agenda today.

Should you have any immediate questions, please contact Nancy Hammer, SHRM Senior Government Affairs Policy Counsel, at nancy.hammer@shrm.org.