• EEOC Enforcement Guidance Expected on Employers’ Consideration of Arrest and Conviction Records
  • April 23, 2012 | Authors: Susan M. Corcoran; Garen E. Dodge; Richard Greenberg; Paul A. Patten
  • Law Firms: Jackson Lewis LLP - White Plains Office ; Jackson Lewis LLP - Reston Office ; Jackson Lewis LLP - New York Office ; Jackson Lewis LLP - Chicago Office
  • The Equal Employment Opportunity Commission will vote on April 25, 2012, to approve new enforcement guidance on the use of criminal background checks in employment.  It is expected that the EEOC’s new guidance will substantially modify existing EEOC guidance on criminal background checks, which has been in existence since 1987.  Employers seeking to avoid Title VII litigation risks anticipated from the new guidelines may have to reconsider and refine their use of criminal background checks in making employment decisions, and individuals posing increased risk to co-workers, customers and the public, and to employers, may be hired or retained.
    The EEOC decided not to conduct a public vote on April 25th on its draft guidance on the use of credit checks.  That guidance had been the subject of significant dissension within the agency, and the votes appeared lacking for its passage.
    The EEOC is under significant internal pressure to release the guidelines quickly. Commissioner Stuart Ishimaru announced that he will resign from the agency effective April 29.  Upon his resignation, Commission membership will be split evenly, with two Republicans and two Democrats, making it much more difficult to issue any controversial guidance.

    Employers should review and modify, as necessary, their current criminal background check practices once the new guidance is made known.