The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently posted a Directive on “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.” The Directive incorporates guidance issued on the same subject by the Equal Employment Opportunity Commission on April 25, 2012.

The OFCCP Directive and the EEOC Enforcement Guidance emphasize the racial and ethnic disparities reflected in incarceration rates and advise contractors to proceed with caution when relying on job applicants’ criminal records for employment decisions. The OFCCP warns that policies and procedures that categorically exclude individuals based on criminal records and do not take into account the nature and age of an offense may violate federal antidiscrimination laws such as Title VII. The agency clarifies that this is because an automatic bar to hiring those with a criminal record will likely result in an adverse impact on certain racial or ethnic groups.

If an employer’s exclusion policy creates adverse impact on a protected class, it will need to prove that it is job-related and consistent with business necessity. This can be established when an employer validates the exclusion in accordance with the Uniform Guidelines on Employee Selection Procedures (UGESP). If an employer does not validate in accordance with the UGESP, it can analyze job-relatedness and business necessity by using the following three factors contained in the EEOC Guidance: the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct, or completion of the sentence; and the nature of the job held or sought.

According to the EEOC Guidance, which is quoted in the OFCCP Directive, there are a number of “best practices” that employers (both contractors and non-contractors) should follow to avoid liability for discrimination based on the use of criminal records in employment. These include:

  • Ensuring that any policies and procedures that screen applicants and employees for criminal conduct require an individualized assessment
  • Drafting hiring policies and procedures related to criminal convictions that are narrowly tailored to the essential job requirements and actual circumstances under which the jobs are performed; the specific offenses that may demonstrate unfitness for performing such jobs; and the appropriate duration of exclusions for criminal conduct, based on all available evidence
  • Refraining from inquiring about convictions on job applications
  • If asking about criminal background, limiting the inquiry to convictions for which exclusion would be job-related for the position in question and consistent with business necessity
  • Keeping information about applicants’ and employees’ criminal records confidential and using it only for the purpose for which it was intended

Many states and localities have adopted “ban the box” laws that prohibit employers from inquiring about convictions or arrests on job applications. In addition to the OFCCP and EEOC guidance, employers should check state and local laws to ensure compliance in their policies and procedures.  

The OFCCP Directive also provides information about the Training and Employment Guidance Letter, TEGL 31-11, issued by the Department of Labor’s Employment and Training Administration. The Letter concerns the relevance of exclusions based on criminal records to existing nondiscrimination obligations of public workforce system entities. It advises “covered entities to conduct their activities using safeguards to prevent discrimination and promote employment opportunities for formerly incarcerated individuals and other individuals with criminal records.”

The notices attached to TEGL 31-11 describe other federal laws that “might affect contractors’ employment practices regarding the use of criminal records” in making employment decisions. One of these laws, the Fair Credit Reporting Act, requires an employer to obtain permission before requesting an applicant’s criminal history report. In addition, before an employer takes an adverse employment action based on information in a report, it must provide the applicant with a copy of the report and a summary of the applicant’s legal rights. Other laws, such as those governing the Work Opportunity Tax Credit and the Federal Bonding Program, provide financial incentives to support employers’ hiring of applicants with qualifying criminal records.

Employers should review their job applications and related policies and procedures to ensure compliance with the Directive. If you have questions about the OFCCP Directive or EEOC Guidance or would like to discuss this issue further, please contact Brian D. Pedrow at 215.864.8108 or, or the member of the Labor and Employment Group with whom you work.

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