Last week the EEOC issued an updated policy on the use of arrest and criminal records in hiring decisions.
As employment attorney Ron Chapman explained in a post last week, the enforcement guidance “summarizes the EEOC’s long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin.”
“This is an opportune time for employers to reexamine their background-check policies and practices,” Chapman suggests.
Have you? Even if your website and job applications have been wiped clean of references to — or never mentioned — criminal records, you may still have a problem. If you use outside recruiters, do you know what your vendors are doing?
Even if you scrupulously follow the guidelines and observe the best practices detailed by the Equal Employment Opportunity Commission, your recruiting vendors could be torpedoing your hard work by routinely eliminating from their sendouts anyone with a criminal record, or, worse, who has even ever just been arrested.
With dozens, or hundreds or, in the case of the largest employers, thousands of independents, small firms, staffing companies, and the like in your VMS, it’s not only possible, but probable that, as attorney Barry Hartstein puts it, there are recruiters “trying to make candidates as attractive as possible.” That means scrubbing out anyone with a criminal record.
How liable are you for the transgressions of your recruiting vendors if the EEOC comes knocking?
The EEOC guidance, says Hartstein, co-chair, Hiring and Background Checks Practice Group at Littler Mendelson, is “intended to apply to employers and an agent of an employer.” Whether an independent recruiter who responds to a job order is your agent, exposing you to liability becomes a question of fact.
“The employer says, ‘I didn’t know anything about it’,” explains Hartstein, the “it” being the screening out of all candidates with a criminal record. “The person who didn’t get the job says, ‘All I know is I was screened out.’
“These become what I would think of as a fact situation,” adds Hartstein. “It would make me a little nervous.”
Be prepared to be a little more than a little nervous. The EEOC’s perspective on the applicability of its guidance is expansive. ”We usually have a very broad view,” says Peggy Mastroianni, associate legal counsel for the EEOC. The term employer, as used in the policy, has “a very broad definition,” she adds.
Angela Bosworth, vice president of compliance and general counsel for EmployeeScreenIQ, says the matter is largely resolved: “The EEOC and the courts have made clear that employers can’t hide behind recruiters.”
So attempting to skirt the rules by using outside recruiters is only going to get you into trouble. And the collusion doesn’t have to be overt or even intentional. Circumstantial evidence, says Hartstein, is often sufficient in EEOC cases.
As you review your internal screening procedures, make sure you communicate your policy to your vendors. Staffing firms, who are employers of record, should already be aware of the EEOC guidance. But alerting them to the EEOC update and your corporate policies is a smart idea, especially if you do any temp to perm hiring.
Alerting your recruiting vendors and sending them the message not to screen out candidates based on arrests or criminal records is “certainly a proactive approach,” agrees Hartstein. Not even asking about them, he adds, makes for a good “equal opportunity employer. That’s the standard to apply.”
