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EEOC warns employers against misuse of criminal background checks

Employers in San Diego and throughout the entire state of California may have reasons not to hire or promote employees based on inexperience, poor work history or other factors. However, when it comes to making hiring or promotion decisions, discrimination against job applicants or current employees under state and federal labor and employment laws is not permitted.

The U.S. Equal Employment Opportunity Commission recently reminded employers that they cannot discriminate against job applicants or employees who have criminal histories or arrest records. Employers can ask for this information -- and criminal histories may affect whether or not an individual can be hired or promoted -- but employers must follow specific guidelines when asking for this type of information from employees and job applicants.

If employers ask about arrest records or learn that an individual has been convicted of a crime after performing a background check, the EEOC has set out some guidelines employers can follow to ensure that applicants and employees are not denied jobs or promotions solely on this information.

To avoid violating Title VII of the Civil Rights Act, if it is learned that a potential worker has a criminal past, employers must conduct an "individualized assessment" that considers the nature of the offense, the amount of time that has passed since the criminal offense happened, and the type of job and responsibilities the individual would be accountable for if hired. For example, if an individual was convicted of theft, he or she could be denied a job if the responsibilities include working with money or the private information of consumers.

To ensure that the rights of employees and job applicants are not being violated, the EEOC also suggests that companies train managers about Title VII and what types of actions may be considered employment discrimination. If a company believes that it is important to ask for criminal background information, the company should have very detailed policies in place in order to make sure that this information is not used illegally.

Source: Business Management Daily, "EEOC urges caution on criminal background checks," May 4, 2012