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Criminal Checks Still Problematic

Employers should be aware that the Equal Employment Opportunity Commission continues to defend how it enforces of ban on employer criminal background checks of job applicants.

Although it may seem like the prohibitions on employer use of applicants’ criminal records have shifted to the states and some of the larger metropolitan areas, the EEOC is not letting up on its campaign to impose this form of “ban the box” nationwide, even in the face of legal defeats.

After issuing a guidance prohibiting such background checks in 2012, the commission mounted a concerted assault on the practice through a series of lawsuits against employers.

Although it has experienced some push back from courts, EEOC has not let up in pursuing these enforcement activities.

In fact, EEOC’s Strategic Enforcement Plan for Fiscal Years 2017-21 directly refers to eliminating systemic barriers in recruitment and hiring as one of the commisison’s national priorities.

Included in the plan is the targeting of employers’ use of “screening tools” and “background screens.” The commission also is not shrinking away from its extensive discovery demands for company files.

“Employers thus should continue to exercise caution and care in drafting their criminal record screening policies,” say attorneys Rod Fliegel and Allen Lohse of the law firm of Littler Mendelson.

They also urge employers to arrange for lawyers to conduct a review of background check procedures, which then is considered privileged information.

“Employers also should continue to be mindful of their obligations under the proliferating state and local ban the box laws,” the lawyers stress.

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