Dollar General appears to be the most recent example of the EEOC challenging a company’s use of criminal conviction background investigations on individuals. The details of the EEOC complaint are not yet known. All we know is their statement in their most recent SEC filing that the EEOC has filed a complaint against them.
Earlier this year, Pepsi Beverages agreed to pay $3.1 million after the agency found the company’s’ use of criminal background checks discriminated based on race. Details of the pepsi action
But, it serves as a reminder that the EEOC is going to aggressively challenge a company’s policies in this area. So what should a company do?
Compliance can be somewhat easily accomplished by using a practice labeled by the EEOC as Individualized Assessments. First the company must take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or the completion of the sentence and the nature of the job sought in order to be sure the exclusion is particularly related to that position. It is best for the company to have the job responsibilities for a position and a list of criminal convictions that will prohibit the individual from being hired for that position.
Next, there should be a notice to the individual that a criminal record caused the rejection, an opportunity to explain why the conviction should not preclude the applicant from the job and additional consideration by the employer of the circumstance brought to their attention by the individual. Well, this is easy as it is already a required step under the Fair Credit Reporting Act. And, our system already makes this notification step easy to accomplish.
So here is some good advice:
- Don’t have a policy that automatically excludes individuals due to any conviction/arrest any time in their past.
- Develop targeted screens based on nature and gravity of offense, time that has passed and relation to the job.
- Have a process that notifies the individual of the action based on the existence of a criminal conviction and give them time to address its accuracy and relation to the job.
We will consult with anyone that would like to revisit their background screening policy to assure compliance. And, this would be at no charge. Let us know if you need any help.
The article is a good example of a company that, even though they have a policy in place that excludes hiring individuals with certain criminal convictions for specified periods, is still facing scrutiny from the EEOC.
Here is the article from Nashville Business Journal