OFCCP Joins EEOC on Criminal Background Checks

On January 29, 2013, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) joined the U.S. Equal Employment Opportunity Commission’s (“EEOC”) position on the use of criminal background checks in screening applicants for employment. In Directive 306, entitled Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin, the OFCCP instructed the federal contractor community to consider federal anti-discrimination laws before excluding applicants from employment based on the results of criminal background checks. By issuing Directive 306, the OFCCP adopted the EEOC’s April 25, 2012 Revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.

The EEOC’s Guidance and the OFCCP’s Directive 306 both encourage employers and contractors to not inquire about criminal records convictions on job applications at all. If a contractor chooses to consider criminal records histories of applicants, however, the OFCCP, like the EEOC, states that the inquiry should be limited only to those convictions that are job-related and consistent with business necessity.

The EEOC’s Guidance and Directive 306 prove that government agencies powered with enforcing anti-discrimination laws are closely scrutinizing the use of criminal background checks in employment. Employers and contractors who conduct criminal background checks in the application process must be mindful of the EEOC’s Guidance and Directive 306 as well as the numerous other federal and state laws regarding, and oftentimes limiting, the use of criminal records histories in the employment process.

Leech Tishman’s Employment Practice Group is available to advise employers on the importance of Directive 306 and the EEOC’s Guidance as well as help employers properly manage the use of criminal background checks in the employment process to help them avoid liability.

Please feel free to contact the Employment Group with any questions regarding Directive 306 or the EEOC’s Guidance, or any other employment matter.

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