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EEOC Uses its Record Keeping Requirements to Police use of Criminal Background Checks

We don't think about personnel files — we just have them. Everything from employment applications to benefits enrollment forms to discipline and discharge documents goes into those files. But did you know that the EEOC requires employers to keep all personnel and employment records for at least one year? 

When an employee is terminated, his employment records must be kept for one year following the termination date. Just as importantly, to the extent the employer uses a screening technique, like a pre-employment test, information on its impact on candidates by sex, race and ethnic must be kept. These requirements are set forth in the EEOC's Uniform Guidelines on Employee Selection Procedures.  

Last Friday, the EEOC sued a Pennsylvania janitorial and facilities management company for failure to maintain disparate impact information relative to its use of criminal background checks. Many employers routinely use criminal background information as a screening tool. Some of these policies and practices have been in place for years without employers revisiting their purpose. As the law evolves, such policies and practices can wind up on the wrong side of the law. For instance, in Illinois, use of arrest records as a screening tool violates the Illinois Human Rights Act. Effective January 1, 2015, Illinois joined a number of other states by "Banning the Box" via the Job Opportunities for Qualified Applicants Act. This act prohibits most employers from even considering an applicant's criminal background until the employer has determined the person is qualified and will be interviewed for the position (or a conditional offer of employment has been made).

Federal law, such as Title VII, prohibits employers from using any screening criteria that has a disparate impact on minority groups. This includes the use of criminal background information. In fact, policing the use of criminal background checks is one of six national priorities identified by the EEOC's Strategic Enforcement Plan. We strongly recommend that if your company uses criminal record information in making employment decisions, you adopt the "best practices" guidelines suggested by the EEOC. The starting point of these guidelines is to eliminate sweeping policies that excludes all candidates from employment on the sole basis of any criminal conviction. You should tailor your criminal background policy as narrowly as possible with the goal of insuring that criminal background inquiries actually help determine if candidates can perform the duties and responsibilities of the job in question. For example, a ten-year old drug conviction may not have anything to do with an individual's current ability to answer phones, file documents, process inventory, or perform other tasks associated with a given job.

When using criminal background information in employment decisions, justify the bases for doing so. Document why candidates' criminal background impacts their ability to do the job and list the specific offenses and the age of the convictions that will typically disqualify a candidate for a particular job. As in the example above, a ten-year old drug conviction, perhaps a crime committed by the job candidate in his or her "youth," is probably too old to be instructive of the type of employee he or she would be today. The ultimate goal is to ensure that the particular screening practice is a valid indicator of future job performance, not an arbitrary set of criteria that will impact minority groups in a disproportional manner.

The take away from this article is to DOCUMENT, DOCUMENT, AND DOCUMENT some more why you are using criminal background information as part of your job screening process. Make sure your written policies and procedures are carefully written and tailored to ensure you have a business necessity to use criminal background information. Ensure that all involved in the screening process understand proper role of criminal background checks in the process. Finally, retain records supporting your justification for using criminal background checks for at least a year after a position is filled. If possible, retain pre-hire records, or a sampling of those records in the case of extensive hiring, for a year after a position is filled, should the EEOC come knocking on your door to audit how hiring decisions are made at your company.

We will continue to monitor the impact of the EEOC's pending litigation and its challenge to the Pennsylvania employer's record keeping (or lack thereof) in its pre-employment processes that include criminal background checks. Feel free to check out the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 found on the EEOC's website. Its Uniform Guidelines on Employee Selection are found in the Code of Federal Regulations (29 C.F.R. § 1600).

Additional information is also available from Linda K. Horras (312-704-3022) or any other Hinshaw employment attorney. 

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