The DOL’s Office of Contract Compliance Programs (OFCCP) has issued a new directive advising federal contractors and subcontractors about potential discriminatory liability that could result from using criminal records as a screening device. According to the agency, policies and practices that exclude workers with criminal records without taking into account the age and nature of the offense could run afoul of Title VII of the Civil Rights Act by adversely impacting minority candidates. In addition to discussing the ways in which using criminal background checks may violate anti-discrimination laws, the directive provides information on the recently updated Equal Employment Opportunity Commission enforcement guidance on this topic, as well as the Training and Employment Guidance Letter (TEGL) issued by the DOL’s Employment and Training Administration that addresses the relevance of excluding candidates with criminal records to existing nondiscrimination obligations of public workforce system entities.
As discussed in more detail here, the EEOC guidance explains the circumstance in which using criminal records in the hiring process may disproportionately exclude minority candidates, clarifies when using a criminal record screening policy is job related and consistent with business necessity, and sets forth a number of “best practices” for employers to follow to avoid liability. In its directive, the OFCCP recommends that contractors follow these suggestions, and further recommends that contractors, “as a general rule, refrain from inquiring about convictions on job applications.” When such inquiries are made, the OFCCP says that they should be “limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity,” and that such information be kept confidential.
Contractors that are subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) must list job openings with “an appropriate local employment service office of the state employment security agency wherein the opening occurs” or “the appropriate employment service delivery system where the opening occurs.” Contractors using such federally assisted workforce systems are advised to use certain procedures outlined in the TEGL regarding posting job announcements and screening and referring applications based on criminal record restrictions. For example, when a contractor registers to use a federally-assisted Job Bank and posts job vacancies that exclude individuals based on arrest and/or conviction records, the covered employment service is required under the TEGL to provide the contractor with a notice ("Notice #2 for Employers Regarding Job Postings Containing Criminal Record Exclusions") that enables the contractor to remove or edit the vacancy announcement. Position announcements excluding applicants with criminal histories would need to be posted with a separate notice explaining that the exclusions might adversely impact certain protected groups and notifying them that individuals with criminal history records are not prohibited from applying for the posted position.
Finally, the directive provides information on two other federal laws – the Fair Credit Reporting Act (FCRA) and the Work Opportunity Tax Credit (WOTC) – that have some bearing on a contractor’s use of criminal records in making employment decisions.
A more detailed discussion of this directive will be provided in a forthcoming Littler ASAP.
Photo credit: Kirby Hamilton