The Equal Employment Opportunity Commission (EEOC) recently published new guidelines for how employers should (1) handle inquiries into arrest and criminal conviction records of applicants and employees, and (b) make employment and hiring decisions when criminal backgrounds are part of the consideration. The full text of the EEOC’s Enforcement Guidance Memorandum 915.002 is available here.
Although EEOC Enforcement Guidance memoranda are not binding precedent, many judges rely on them as persuasive authority in litigation matters. In addition, EEOC Enforcement Guidance memoranda are often relied on heavily by the EEOC (and probably the DFEH) in administrative inquiries being conducted under Title VII (and probably under FEHA).
EEOC Enforcement Guidance Memorandum 915.002 contains a series of suggested “best practices” for employers who are considering criminal record information when making employment decisions. These best practices include:
Eliminate policies or practices that exclude people from employment based on any criminal record.
Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.
Developing a Policy
Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
Identify essential job requirements and the actual circumstances under which the jobs are performed.
Determine the specific offenses that may demonstrate unfitness for performing such jobs.
Identify the criminal offenses based on all available evidence.
Determine the duration of exclusions for criminal conduct based on all available evidence.
Include an individualized assessment.
Record the justification for the policy and procedures.
Note and keep a record of consultations and research considered in crafting the policy and procedures.
Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
California employers should review this Enforcement Guidance Memorandum along with state laws that address this issue (e.g., California Labor Code 432.8, which prohibits California employers from using certain marijuana related convictions in making employment decisions) to ensure that their policies and practices are in compliance.