EEOC proposal bans employee background checks

By Libby Libhart, founder, LossBusters

An announcement this week from the Equal Employment Opportunity Commission could dramatically affect the internal vulnerability of the restaurant industry and its employees. The EEOC is proposing a ban on employers conducting criminal background checks on job applicants and current employees. EEOC Chair Jacqueline Berrian stated in a press release: “Today, we had the opportunity to add to our knowledge of this issue and learn about the practical ways employers have been able to balance business concerns with the need to ensure that employment practices are fair and non-discriminatory.”

Heads and spokespersons from several social agencies advised the Commission of the barriers of arbitrary hiring restrictions for convicted criminals re-entering the workforce. Amy Solomon, the co-chair of the Department of Justice’s Reentry Council heads a group to examine all aspects of individuals with criminal records with three main goals:

  1. Make communities safe from recidivism and victimization
  2. Assist people returning from jail or prison to become productive citizens
  3. Reduce the direct and collateral costs of incarceration and saving tax dollars

The Commission was also warned of the unreliability of criminal record databases and proliferation of companies offering “instant” background checks that often contain inaccurate or incomplete information without providing explanatory details.

The National Retail Federation, supported by a dozen other groups, sent a letter to the commission urging them to reject the proposal.

A portion of the letter states, “We are companies and trade associations representing businesses that have a critical need to protect the safety of people and property in workplaces across the United States. One of the most important ways to create safe working environments is for employers, principals and volunteer organizations to be able to conduct criminal background checks of employees, independent contractors and volunteers.”

“We understand the frustration some have in finding employment, especially in a time of national economic stress, and we also appreciate the strong desire to reintegrate former prisoners into American society,” the letter said. “However, attempts to ease unemployment frustration or reentry desires should not come at the expense of keeping people and businesses safe from physical or financial harm.”

More than 13 million people are employed by the restaurant industry and those employers, as well as companies in general, have a responsibility to keep their employees and customers out of harm’s way. Many have been held liable for millions of dollars for negligent hiring and retention from the actions of their employees. Criminal background checks is an important tool in conducting due diligence in protecting a business’s employees, customers, and profits safer. Following the guidelines set by the Fair Credit Reporting Act sets parameters for the applicant to respond to adverse information found in a criminal search.

Hiring rehabilitated ex-cons can be considered a noble cause. On the other side of the ledger, what vulnerabilities will exist if the opportunity to look into the past of prospective employees is eliminated? What behavior will we expose our people to? With holding companies responsible for negligent hiring for employees that harm other employees or customers, how are they to monitor and safeguard the hiring process?

This proposal applies to all criminals being released. Recidivism rates are very high and ex-cons are returned to prison for the same or worse crimes. An important question to consider is, “how will this impact me and my business?” If it does, I urge you to act now. The train is leaving the station.

The Commission will hold open the July 26, 2011 Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings. Public comments may be mailed to:

Commission Meeting, EEOC Executive Officer
131 M Street, N.E.,
Washington, D.C. 20507,
or emailed to Commissionmeetingcomments@eeoc.gov.

All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings. Comments will also be placed in the EEOC library for public review.

Click here to read more about staffing and training issues with the restaurant industry.

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User Comments – Give us your opinion!
  • Vijay Swearingen
    86174029
    Employment and hiring responsibility should be held at the discretion of the individual employer. You want to hire people who fit what you are trying to accomplish. These proposed laws serve to destroy businesses and all of the positives that come from building responsible employer-employee relationships. In the end, you hire who you want to represent your company, your brand. This is a ridiculous proposal and a more ridiculous argument.
  • Lou Winegrad
    86165967
    What's next--disallowing consideration of prior employment?
  • Mike Coffey
    85207706
    This is very misinformed. There is no published EEOC proposal suggesting that background checks be banned. The quote from EEOC Chair Jacqueline Berrian does not even hint at that.

    The Third Circuit's decision in El v. SEPTA pointed out that the current EEOC guidelines (which are over 20 years old) were not specific enough to be helpful to employers. In response, the EEOC is preparing to revise those guidelines (which still won't have the force of law) and this public hearing was a part of that process. However, no one at the EEOC has published a proposal that an outright ban be put into place.

    As stated in the testimony to the EEOC, the biggest problem with background checks is the use of "instant" criminal record databases, which regularly associate criminal records with the wrong people and provide inaccurate or incomplete information. They also miss between 40 and 60% of the criminal records, depending on where the job seeker has lived.

    This is the sort of inexpensive background check used by many retailers.

    Over 120 background screening firms have come together to oppose the irresponsible use of criminal records databases. You can read more about them at http://www.concernedCRAs.com.
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