Federal Regulations

1. Title VII of the Civil Rights Act

Title VII of the Civil Rights Act protects people from discrimination based on race, color, religion, sex or national origin. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII, including employment discrimination of those with criminal records. Per the EEOC Guidance on the Use of Arrest and Conviction Records by Employers, the EEOC will take action against an employer if the employer has a practice of excluding individuals from employment on the basis of a conviction record if this practice has an adverse affect on hiring minorities and is not a business necessity.

An employer walks a slippery slope here. Let’s say an employer has a “cookie cutter” approach that automatically disqualifies an applicant based on finding a criminal record. If the employer did not know at the outset the disqualified applicant was a minority, can the employer be sued? The answer is yes, depending on the circumstances. More information regarding this topic is covered in the EEOC Guidance Section below.

2. The Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) is often called the Gold Standard when it comes to employers and property managers using criminal record checks. When these entities use a third party to help conduct a background check, the regulations within the FCRA are triggered.

The wording of the Act - “Fair Credit Reporting” is confusing since the law regulates a variety of items beyond criminal records or credit reports. The Act governs other checks such as civil records, driving records, civil lawsuits, reference checks, and any other information obtained by a Consumer Reporting Agency (CRA), also called a background screening firm.

The FCRA establishes specific requirements and rules for a background report, called a Consumer Report, which is usually much broader in scope than just a credit report. Per Section 6005 of the FCRA, a CRA (background screening firm) may only include certain items of information in a consumer report. FCRA Section 605 specifically limits certain information:

• Records of arrests without dispositions cannot be reported if older than seven years from date of entry.
• There are no limits under the federal FCRA for reporting criminal convictions.

It is extremely important to note that a number of states are more restrictive and do place limitations on the reporting of, and use of, criminal records. These state restrictions can be found at www.CraHelpDesk.com on the State Rules Register. Content is provided by a long-time Employment Law attorney, Mr. Larry Henry Esq.

3. New EEOC Guidance on Use of Arrest and Conviction Records by Employers

In recent years there has been a very noticeable legislative trend to limit the use of criminal records in the employment process. Perhaps, one of the most influential past events is an April 15, 2012 announcement by the U.S. Equal Employment Opportunity Commission (EEOC) on its Enforcement Guidance on the use of criminal records. More about this announcement can be reviewed at https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions. Further, enforcement guidance was also provided by the EEOC following the announcement. The full Q & A on this can be found at https://www.eeoc.gov/laws/guidance/questions-and-answers-about-eeocs-enforcement-guidance-consideration-arrest-and.