EEOC Says Employers Should Let Job Seekers Explain Reports of Past Criminal Misconduct Before Rejecting Them

The Equal Employment Opportunity Commission issued new guidelines this week that would make things better for job seekers who are automatically rejected when would-be employers receive reports of criminal misconduct, even if that information is wrong.

The new guidelines do not call for a complete ban on criminal background screening. The commission suggested that employers not ask applicants about criminal convictions on job applications. The new policy also says that in most cases an arrest without a conviction is not generally an acceptable reason to deny employment. Beyond that, the new guidelines—approved in a 4-1 vote this week—urges employers to give applicants a chance to explain a report of past criminal misconduct before they are rejected outright, Fox News reports.

Consumer education and credit expert John Ulzheimer tells eFinancialCareers that he believes “employers should have a pretty wide variety of methods to screen the people they’re going to employ,” given these individuals will represent the company once they’re hired and could expose them to lawsuits or other trouble down the road.

Those in finance certainly “don’t want to hire a convicted felon if you’re giving that person any access to banking account-related information or other customer information,” says Ulzheimer, adding that in today’s job market, most applicants would probably encourage employers to check out their criminal history—or lack thereof.

On the other hand, Ulzheimer says, it’s reasonable to allow applicants the chance to explain reports of criminal misconduct in order to avoid “mismatches” by investigative firms.

“Let’s be honest—there are errors in criminal reports and mismatches,” says Ulzheimer.

For instance, a screening company providing reports to employers might identify a “Joe Smith” with a history of DUIs and it could turn out it’s a different Joe Smith making the job application.

Ulzheimer, who is often asked about the kinds of information employers can and cannot take into account when considering a new hire, told eFinancialCareers a while back that there’s a difference between a credit report and a credit score, and that banks and other employers are not permitted to obtain scores as part of their due diligence on a prospective employee.

In the case of the latest EEOC ruling, some employers say it could make it more cumbersome and expensive to conduct background checks. On the other hand, would-be employees should appreciate the changes. “An applicant might say the report is inaccurate or point out that the conviction was expunged,” says Fox News. “It may be completely unrelated to the job, or an ex-con may show he's been fully rehabilitated.”

This week's EEOC vote follows a commission hearing last summer where advocacy groups urged the commission to completely bar employer-based criminal background screenings.

“Background screenings are an essential aspect of the hiring process for businesses and provide employers a better sense of the individuals they are putting into their workforce, representing their company and interacting with their customers,” NRF government relations executive David French maintains.

An NRF survey conducted last year found 87 percent of retailers use criminal background screenings as part of their hiring process.