Some Employers Concerned About Potential Laws On Criminal Records in Hiring

10-20-2012 National:

As employers across the U.S. grapple with the Equal Employment Opportunity Commission's updated guidance on the use of arrest and conviction records in the hiring process, city council bills from Washington State and Washington D.C. aimed at helping ex-offenders reenter the workforce are causing some employers concern, reports Corporate Counsel. Pam Devata, Chicago lawyer with the firm Seyfarth Shaw, says both proposals emulate the EEOC’s recommendation for employers to make an “individualized assessment” of applicants. The commission says that if an employer finds a conviction in a candidate’s criminal history, it should give the applicant a chance to explain why he or she shouldn’t be excluded from consideration.

Several states, including Hawaii and Wisconsin, already limit prospective employers’ use of arrest and conviction records. Trying to prevent employee theft, fraud, and violence is the primary motivating factor for conducting background checks, says Devata. “Employers are trying to do the right thing, but they’re also trying run a business,” she says. “They have to make sure that they keep their customers and their employees safe.” She adds, “Negligent hiring cases mean that something egregious happened in the workplace. They can be very heinous, and the fact that it happened once, that’s what employers are trying to prevent.”

While there is no federal law that prohibits an employer from asking about arrest and conviction records, the EEOC has said that using such records as an absolute disqualification for employment could limit the employment opportunities of some groups protected under Title VII of the Civil Rights Act.

Several states, including Hawaii and Wisconsin, already limit prospective employers’ use of arrest and conviction records. The states have laws and rules ranging from prohibitions against employer questioning of applicants about arrests to restrictions on factoring conviction records into employment decisions.

A spokesperson for the EEOC declined to comment on the councils’ pending bills. ...continued... by Shannon Green