Compliance

Key Federal Compliance Regulations Involving the Use of Criminal Records

The heading above is a mouthful. But so are the regulations. There are three strong federal influences regarding the use of criminal records:
  1. Title VII of the Civil Rights Act
  2. The Fair Credit Reporting Act (FCRA)
  3. The U.S. Equal Employment Opportunity Commission (EEOC) and its Guidance on the Use of Arrest and Conviction Records by Employers

1. Title VII of the Civil Rights Act

Title VII of the Civil Rights Act protects people from discrimination based on race, color, religion, sex or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII, including employment discrimination of those with criminal records. Per the EEOC Guidance on the Use of Arrest and Conviction Records by Employers, the EEOC will take action against an employer if the employer has a practice of excluding individuals from employment on the basis of a conviction record if this practice has an adverse affect on hiring minorities and is not a business necessity.

An employer walks a slippery slope here. Let’s say an employer has a “cookie cutter” approach that automatically disqualifies an applicant based on finding a criminal record. If the employer did not know at the outset the disqualified applicant was a minority, can the employer be sued? The answer is yes, depending on the circumstances. More information regarding this topic is covered in the EEOC Guidance Section below.

See a copy of Title VII of the Civil Rights Act at www.dol.gov/oasam/regs/statutes/2000e-16.htm.

2. The Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) is often called the Gold Standard when it comes to employers and property managers using criminal record checks. When these entities use a third party to help conduct a background check, the regulations within the FCRA are triggered.

The wording of the Act - “Fair Credit Reporting” is confusing since the law regulates a variety of items beyond criminal records or credit reports. The Act governs other checks such as civil records, driving records, civil lawsuits, reference checks, and any other information obtained by a Consumer Reporting Agency (CRA), also called a background screening firm.

The FCRA establishes specific requirements and rules for a background report, called a Consumer Report, which is usually much broader in scope than just a credit report. Per Section 6005 of the FCRA, a CRA (background screening firm) may only include certain items of information in a consumer report. FCRA Section 605 specifically limits certain information:
  • Records of arrests without dispositions cannot be reported if older than seven years from date of entry.
  • There are no limits under the federal FCRA for reporting criminal convictions.
It is extremely important to note that a number of states are more restrictive and do place limitations on the reporting of, and use of, criminal records. This is covered in the State Compliance page.

A copy of the FCRA is found at www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-credit-reporting-act

An Extensive Resource About The FCRA and Employment

An in-depth discussion of how FCRA regulates users (such as employers) and third party vendors would fill an entire book. In fact it does. The Safe Hiring Manual, 2nd Edition, by Mr. Lester S. Rosen, is complete blueprint for employers and background screening companies on how to comply with the FCRA. Mr. Rosen is a nationally known expert and speaker regarding the FCRA and its effect on employment screening. In addition, Mr. Rosen, who is also an attorney, is the President of Employment Screening Resources, a background screening firm.

Mr. Rosen has been kind enough to provide excerpts below. They provide a concise, informative overview of this act and how it legally affects employers using criminal records. We sincerely thank him for allowing this web page to reproduce his material.

3. New EEOC Guidance on Use of Arrest and Conviction Records by Employers

In the past few years there has been a very noticeable legislative trend to limit the use of criminal records in the employment process. Perhaps one of the most influential events is an April 15, 2012 announcement by the U.S. Equal Employment Opportunity Commission (EEOC) on its Enforcement Guidance on the use of criminal records. This document was not legislation or a series of rules that courts must enforce, rather they are internal investigation guidelines for the EEOC.

An excellent summary of the Guidance was written by Mr. Tom Ahearn, News Editor at Employment Screening Resources. We thank Mr. Ahearn for allowing us to reproduce his article below.
Lately there has been quite a bit of pushback on this Guidance. A search of the news media sources will uncover a variety of articles and events. For example, in June 2013, the EEOC filed suit against two employers—BMW and Dollar General. In each case, the EEOC claimed the employers’ use of criminal background information violated Title VII of the Civil Rights Act. In July 2013, the attorneys general from nine states wrote a letter to the EEOC urging it to dismiss the lawsuits and to rescind the Guidance. On November 4, 2013, Texas filed a federal lawsuit that seeking to strike down the EEOC’s Enforcement Guidance.

A Unique Employer Resource to Comply With the EEOC Assessment Process

Quite simply, CrimApollo is an online service that enables employers to:
  • set job attributes (does the position involve working with minors, operating a motor vehicle, etc.)
  • and choose the nature of the offense(s) of an applicant (was the offense violent, theft, etc).
  • for results that provide an instant indicator of job-relatedness and business necessity
  • and lead you through the EEOC "Individualized Assessment.”
The key components are the consistency of evaluation combined with complete documentation. Each assessment is completed online in about 4 minutes. Developed by industry experts and veteran employment law attorneys, the product comes with a complete Employer Criminal Record Usage Policy and Procedure document tailored for the client.


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