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October 12, 2012
Workplace violence: Using individualized assessments and arrest records to screen applicants, Part II

Many law enforcement agencies recommend that employers screen job applicants for violent histories to weed out those who pose a threat of workplace violence. To help employers steer clear of violating Title VII, the federal antibias law, when conducing criminal background checks, last month we looked at new U.S. Equal Employment Opportunity Commission (EEOC) guidelines designed to reduce the disparate impact that these checks can have on African Americans and Hispanics.

This month, we will look at the specifics of conducting individualized assessments as well as the distinction between arrests and convictions.

Conducting individualized assessments

Employers can still screen potential hires for both arrest and conviction records but cannot have a policy that requires automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct.

Instead, if something in an applicant's background check raises concern, the employer can perform an individualized assessment to determine whether the employer's exclusionary policy is acceptable under EEOC requirements.

The updated EEOC guidance explains that an individualized assessment consists of:

  • Notice to the individual that he or she has been screened out because of a criminal conviction;

  • An opportunity for the individual to demonstrate that the exclusion shouldn't be applied because of his or her particular circumstances; and

  • The employer's consideration of whether the additional information the individual provided warrants an exception to the exclusion and shows that the exclusionary policy as applied is not job-related and consistent with business necessity.

An individual's response may include information that he or she was not correctly identified in the criminal record or that the record is otherwise inaccurate. Other relevant individualized evidence includes:

  • The facts or circumstances surrounding the offense or conduct;

  • The number of offenses for which the individual was convicted;

  • The individual's age when convicted or released from prison;

  • Evidence that the individual performed the same type of work after conviction, with the same or a different employer, with no known criminal conduct;

  • The length and consistency of employment history before and after the offense or conduct;

  • Rehabilitation efforts (for example, education or training);

  • Employment or character references and any other information regarding fitness for the particular position; and

  • Whether the individual is bonded under a federal, state, or local bonding program.

Notably, if an individual doesn't respond to your attempt to gather additional information about his or her background, you can make the employment decision without the information.

Practice tip

The restrictions on the use of criminal records aren't limited to initial hiring situations. They also apply to situations that arise during employment—for example, arrest records discovered when a worker applies for a promotion or arrests that occur during employment.

Arrests vs. convictions

As in past guidance, the new EEOC guidance distinguishes between arrests and convictions. An individual's arrest does not establish that criminal conduct has occurred, the guidance points out; arrests are not proof of criminal conduct.

Although an arrest record alone can't be used to deny an employment opportunity, you can make an employment decision based on the conduct underlying the arrest—if the conduct makes the individual unfit for the position in question. (For example, an applicant for a truck driver position who wasn't prosecuted for driving under the influence only because he fell just short of the unlawful blood alcohol level.) The conduct, not the arrest, is relevant for employment purposes.

Remember, also, that the California Fair Employment and Housing Act (FEHA) prohibits employers from seeking information about arrests that did not end in conviction or referral to or participation in a criminal diversion program (for example, a work program as part of probation). It also bars you from seeking information related to convictions for most marijuana possession offenses that are more than 2 years old.

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