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Denver employers: New EEOC guidance on background checks - Part 1

Denver area employers might be interested in the EEOC's latest guidance, which clarifies the EEOC's recommendations on when an employer should not request information about an applicant's criminal convictions on job applications and in hiring procedures. What all hiring managers need to know is that the EEOC requires an employer to have a legitimate business reason for asking a potential employee about their criminal conviction history.

The guidance, which is the first time the EEOC has issued formal guidance on this topic, also states that it is never appropriate to ask applicants if they have ever been arrested. The reason - the EEOC claims that having information about arrest records is not a business necessity. This latest guidance document is the result of PepsiCo's decision to settle an EEOC discrimination claim for $3.1 million. The EEOC complained that PepsiCo discriminated against minorities by refusing to hire applicants who had arrest records.

The EEOC has long held the view that when employers use an applicant's criminal history to screen applicants, the use of that information in making hiring decisions could be a violation of Title VII of the Civil Rights Act because it could allow minorities to be impacted disparately. Thus, it states, an employer needs a good reason to request that type of data.

Now, there are very legitimate reasons for requesting criminal records and performing criminal background checks on potential employees. Usually an employer will request this information to prevent employee theft or fraud and to identify a potentially violent employee. Another reason for requesting such information is to simply limit a business's liability for the negligent hiring of an employee.

For example, a school district would most likely not consider hiring a school bus driver without investigating that employee's driving record, let alone criminal history for sex offenses and other relevant convictions. Imagine the liabilities the district could face should it fail perform certain background checks in the interest of student safety.

Because this is a rather complex topic, and this new guidance is the first of its kind from the EEOC, we will continue this report in next week's post, which will lay out a roadmap of sorts for employers to get a better understanding on when it is ok to request this data and how it should be used in hiring and other employment practices.

Source: Business Management Daily, "EEOC urges caution on criminal background checks," May 4, 2012

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