eLABORate: Criminal Background Checks: OFCCP Backs EEOC'S Guidance

February 15, 2013

In a surprising move, on January 29, 2013, the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP") issued Directive 306, entitled "Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin," instructing federal contractors to strongly consider federal anti-discrimination laws before excluding applicants from employment based on the results of criminal background checks. In so doing, the OFCCP adopted the Revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions issued by the Equal Employment Opportunity Commission ("EEOC") on April 25, 2012. Click here for our discussion of the revised guidance.

Directive 306 was issued just one day after U.S. District Court Judge for the Northern District of Ohio, Judge Patricia A. Gaughan, dismissed the EEOC's first lawsuit challenging the use of pre-employment credit reports. See EEOC v. Kaplan Higher Education Corp, et al., No. 10-CV-2882, 2013 U.S. Dist. LEXIS 11722 (N.D. Ohio Jan. 28, 2013).

Directive 306 encourages contractors to refrain from inquiring about convictions on job applications altogether. If, however, a contractor chooses to consider the criminal record history of applicants, OFCCP expects the inquiry to be limited only to those convictions which are job-related and consistent with business necessity. A contractor may establish job relatedness and business necessity by validating its policy pursuant to the Uniform Guidelines on Employee Selection Procedures enforced by both EEOC and OFCCP (29 C.F.R. part 1607; 41 C.F.R. part 60-3). A contractor also may establish that a criminal record exclusion is job-related and consistent with business necessity by considering the following three factors:
  • the "nature and gravity" of the individual's criminal offense or conduct;
  • the amount of time between a job seeker's criminal conduct and his or her employment application; and
  • the nature of the duties and essential functions of the position sought.
The OFCCP also adopted the Training and Employment Guidance Letter ("TEGL") 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor's Employment and Training Administration ("ETA") and Civil Rights Center ("CRC"). The TEGL instructs 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. American Job Centers (and other covered entities) now are required to identify job postings that include hiring restrictions based on arrest and/or conviction records and send them back to contractors for either modification or further notification to applicants about the inquiry.
Lastly, the Directive suggested that contractors familiarize themselves with any state and local laws that restrict employers' use of arrest and conviction records for employment decisions. Many major cities have joined the growing "ban the box" movement and already have required employers to remove conviction history questions from job applications. In December 2012, Pittsburgh, Pennsylvania and Wilmington, Delaware became the latest U.S. cities to "ban the box," joining other U.S. cities such as Boston, Chicago, Detroit, Philadelphia, San Francisco, Seattle, and Washington DC. According to the National Employment Law Project (NELP), more than 40 cities and counties and seven states have adopted "ban the box" policies that remove questions about criminal history from job application forms and delay them until later in the hiring process to ensure that qualified job applicants with arrest or conviction records are not unfairly excluded from consideration. Under the "ban the box" approach, appropriate background checks can still be conducted prior to employment, but ex-offenders are not chilled or deterred from applying in the first place due to a fear of automatic rejection.
The EEOC's Guidance, OFCCP's Directive and the growing "ban the box" movement, signal the continued scrutiny of criminal background checks by government agencies. Employers that inquire into applicant criminal history should be mindful of the various federal and state laws, as well as agency guidance and directives limiting the use of criminal background checks.