By Sandy Seay

5/7/2012 -

Tales from O’Seay’s fables . . .

According to Hesiod, composing c. 750 B.C., the titan Prometheus stole fire from Zeus on Mt. Olympus and gave it to the mortals below. In his unremitting anger, Zeus commanded Hephaistos to fashion a lovely maiden from earth and water. When he had finished, each of the gods and goddesses bestowed a gift upon her and then sent her down to the unsuspecting mortals along with a great jar, the gift of the gods. The maiden opened the great jar and, alas, from it rushed out grief, sorrows, miseries and cares. Only Hope remained in the jar. The name of the maiden was Pandora.

In a recent Enforcement Guidance Memorandum, the Equal Employment Opportunity Commission has made it immeasurably more difficult on employers when it comes to applicants who have a criminal record. In the past, in most cases, an employer could refuse to hire an applicant with a criminal record that was job related. Now, according to new EEOC guidance, you have to go through a 3 step process and then give the applicant an opportunity to explain. EEOC is also “suggesting” that employers not ask about criminal records on the application form, but wait until later in the interview process. The new guidance does not prohibit an employer from making background checks, including a criminal records check. The only question is, what do we do once we have it?

The essence of the argument seems to revolve around EEOC’s definition of “disparate treatment,” which says that if you have a policy you apply to all applicants equally, this policy may still be discriminatory, if it screens out a disproportionate number of minorities or women. The primary example is a policy of not hiring applicants with an arrest record. Since more minorities get arrested than non-minorities, this policy, even though applied equally to all applicants, tends to screen out more minorities than non-minorities. And since an arrest is not necessarily an indication of guilt, EEOC says this policy is discriminatory.

According to EEOC, criminal records fall in the same category as arrest records, except that some criminal convictions may be job related while others may not be job related. In the past, the “job relatedness” of a criminal conviction was obvious in most cases, such as convictions involving theft, drugs, assault, domestic abuse, etc. Now, EEOC has changed their view and if you are considering not hiring an applicant based on a criminal record, EEOC wants employers to make this determination by going through a 3 step process, followed by an “individualized assessment.”

The three steps are:

1) Nature and gravity of the offence or conduct.

2) The time that has passed since the offence or conduct.

3) The nature of the job held or sought.

Thus, according to EEOC, if you find that a candidate has a criminal conviction, you may not automatically refuse employment, but must consider these three steps as they apply to this candidate and this position, and must document that you have done so. If, after having considered these three steps, you determine that you do not wish to hire the applicant based on the criminal conviction, you must meet with the applicant and give him or her an opportunity to explain. If the explanation the applicant provides is sufficient, you would not be able to refuse to hire him or her based on the criminal conviction. If the explanation is absent or insufficient, you would have grounds for not hiring the applicant. There are some exceptions for some industries and some positions where a state or federal regulation is in play, such as child care workers, certain medical positions, security screeners, care for disabled citizens, etc.

From where we sit, our view is that this new guidance is rife with problems. In the first place, it’s going to take a good deal more management time to go through this process. Second, we live in a litigious society and this entire matter is grist for the litigation mill. Third, there is the possibility that you might have to hire an applicant that you don’t want, one with a criminal conviction. For example, suppose an applicant had a drug conviction seven years ago but has not been in trouble since, and suppose he applied for a service position that involves entering a customer’s house.

Considering EEOC’s three points, someone could argue that (1) it is a serious offence but (2) 7 years is a long time ago and (3) a drug conviction that old is not directly related to the this kind of service position. Thus, you would be required to hire the applicant (or at least, not use the criminal conviction as a reason for not hiring), in which case a convicted drug user would be entering the homes of your customers. Pandora comes to mind.

There is no question that this new guidance is troublesome for employers. Most employers we know want to do the right thing and do all they can to treat employees fairly and equally and with respect and dignity. This new guidance, however, raises an issue that we have not seen before -- the possibility of having to hire an applicant whose conviction could pose a risk to both employees and those they serve, be they customers, clients, members, associates or others.

Here’s what we know to this point:

* Employers should not ask applicants about arrest records and should not use arrest records to make employment decisions.

* Employers may still conduct background reference checks, including a criminal records check. This is a Seay Management recommendation, in most cases.

* Employers may determine not to hire an applicant based on a criminal record, if the criminal record is related to the job, based on the 3 step analysis mentioned above and the “individual assessment.”

* EEOC is “suggesting” that employers not ask about conviction records on the application form, but wait until later in the process.

This is a remarkably significant change in the way EEOC regards the employment process with respect to criminal records and our sense is that most employers oppose it because (1) it doesn’t seem to have very much to do with fairness and equality and (2) it raises the likelihood of putting a convicted criminal who is a potential danger on the payroll. Even recognizing that some convicted criminals should get a second chance, depending on the circumstances, this new guidance still moves beyond the pale, it seems to us and to many others. It is within the realm of possibility that EEOC may reconsider, if the agency hears enough criticism from employers across the country. In the meantime, we at Seay Management are here to help you through this labyrinth, meet this challenge successfully and help resolve any issues that may arise, so please call or email us with any questions you may have. We appreciate having you as a friend and client of our firm and look forward to talking soon.

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