EEOC Advises Caution When Soliciting Records

Last month, the Equal Employment Opportunity Commission (“the EEOC”) released a comment letter providing that employers should exercise caution when soliciting arrest and conviction records from an applicant for employment. Consistent with its past practice of investigating and even suing employers who have blanket policies prohibiting the employment of individuals with certain conviction records, the EEOC advised that “employers should assess the risk that a person with a criminal record may pose if employed, by relating the nature of the crime to the nature of the position, in light of the time elapsed since the crime.” This instruction makes clear that, in order to minimize the risk of scrutiny by the EEOC, employers should carefully consider each applicant’s criminal conviction history and make hiring decisions based on the facts and circumstances of each conviction.

With regard to arrest records, the EEOC cautioned that employers should consider whether a useful reason exists for even inquiring into an applicant’s arrest history given that arrest records are “unreliable indicators of guilt.” The EEOC further opined that (a) questions related to arrest records should be limited to arrests that are related to the position for which the applicant is seeking; (b) employers should inquire into whether the applicant actually engaged in the misconduct alleged; and (c) employers should provide the applicant with a reasonable opportunity to dispute the validity of an arrest record.

Employers should review job applications for questions related to arrest and conviction records to determine whether or not such questions should be revised. Furthermore, human resource professionals and hiring managers need to be fully trained to understand the types of questions they should be asking with respect to such records. Finally, employers ought to be aware of the obligations under the Fair Credit Reporting Act when refusing to hire an applicant based on information the employer receives from an agency that routinely runs criminal background checks.