Tips from the experts on how to implement criminal background checks

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“This guidance is as clear as mud,” said Thomas L. McCally, Esq., equity member of the Washington, D.C. law firm Carr Maloney P.C. discussing the implications of the April 2012 guidance from the Equal Employment Opportunity Commission (EEOC) on employers’ use of criminal background checks.

Thomas McCally of Carr Maloney, P.C.

The Retail’s BIG Show session, “The EEOC Crackdown on Criminal Background Checks” provided retailers with advice on what employers should know and how retailers can comply with the updated guidance.

Like most other employers and businesses, retailers utilize criminal background checks to protect consumers and employees, and limit liability. But as the use of background checks has increased, the EEOC has grown more concerned that they disenfranchise minorities. This concern led the EEOC to update its guidance. As a result, the agency is investigating and litigating up to 16 cases a year on employers’ use of criminal background checks. The main target of this activity, said McCally, is major brands and companies. If retailers and employers still want to utilize criminal background checks to screen applicants and employees, McCally provided a few recommendations, including:

  1. Develop company-wide policies on criminal background checks that are clear and concise. They should be neutral and universal.
  2. Develop strong job descriptions that detail every job function and responsibility. They should be well-developed and shared publicly.
  3. Train every employee and manager on the company’s policies. Everyone involved in hiring decision-making should know the policy and abide by the policy to avoid EEOC action.
  4. Take into account the severity of a given crime and the length of time since the offense when conducting background checks. Only the nature and gravity of the criminal offense should be of concern to the employer.
  5. Eliminate any criminal background check that excludes individuals with a criminal offense or past. Employers can’t not hire an individual just because they were convicted of an offense.
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