Some Good News On Criminal Background Checks

The Equal Employment Opportunity Commission recently issued new Enforcement Guidance that may make job-hunting easier on those facing the stigma of a criminal record (or even an arrest). While the guidance is not the law, it serves as a caution to employers about hiring policies that could be deemed violations of existing employment discrimination laws.

The guidance states that:

A blanket policy that bars hiring applicants with criminal convictions may constitute a violation of the anti-discrimination laws of Title VII of the Civil Rights Act of 1964. That is because, given the statistics, such a policy may result in unfair exclusion of minorities.

Employers may not implement a policy of excluding anyone with an arrest record, because an arrest in itself does not establish that criminal behavior occurred.

Employers are permitted to use a so-called targeted screen that considers the nature and seriousness of the crime, the time elapsed, and the nature of the job. The policy must also provide an opportunity for individual assessment for people excluded by the screen.

The guidance also includes a list of best practices for employers who use criminal background information in their hiring practices. One of the recommendations is that employers limit criminal background checks to situations where they can demonstrate that the information is job-related and a matter of business necessity. For job seekers, such a policy has two benefits: First, it may open up job opportunities that are not clearly at odds with a criminal background, and second, the more limited use of criminal background checks can help anyone who is hired to better preserve their personal privacy.

The best practice for job applicants remains: Do not get convicted in the first place. An aggressive Colorado criminal defense attorney may be your key to a brighter future.

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