Arrest Vs Conviction – Its Effects on Employment

Arrest Vs Conviction – Its Effects on Employment

The Equal Employment Opportunity Commission (EEOC) has updated its guidelines for the first time in 20 years. We had covered this topic previously. We are following the same thread again to understand why these changes were introduced and what should employers do to synch their hiring policies with these changes.

The factor that provoked EEOC to mend the guidelines was the increase in the number of Americans who have had a brush with the law. Compared to a mere 1.8% of the adult population that served time in prison in 1991, by 2007, the rate had soared to 3.2%, which is clearly a big leap. If it goes on like this, according to a calculated prediction by the Department of Justice, approximately 6.6 percent of people born in the U.S.A in 2001 will surely serve time in prison.

Another fact noted by the EEOC was that the arrest and incarceration rates are still disproportionately high among African-American and Hispanic men. This high rate, results in skewed employment proceedings.

What do these changes imply?

The changes brought about by the EEOC do not stop employers from inquiring about an applicant’s criminal history; it only says that how they choose to act upon that information could cause trouble.

The EEOC appreciates that employers can make decisions based on a person’s conduct that led to an arrest. If that particular conduct can directly affect the job in hand, the employer has the right to claim the applicant unfit. If a complaint is lodged against the employer, The EEOC will then review the employer’s use of an individual’s criminal history and how it would impact the job applied for.

It is important that all employers review the guidelines posted here, and analyze their hiring processes; and revise them if necessary. While reviewing, they should also look at the questions present on standard employment applications, interview questions and hiring policies and make sure that they are in complete compliance with the state and federal laws.

Federal laws and regulations restrict the hiring of individuals with criminal records, in certain areas of work, for instance, federal law enforcement officers, airport security screening professionals, childcare workers in federal agencies, bank employees and more. The Title VII does not prevent any of these federally imposed rules.
To ensure compliance with the law, employers must follow some key practices like:

  • Avoiding the exclusion of candidates who have a criminal record with no connection to the job at hand.
  • Creating a well-defined employment policy for screening. This should identify the job requirements and the circumstances under which the job is performed.
  • Conducting individualized assessments for applicants with criminal records.
  • Limiting the questions related to convictions to areas that are relevant to the job requirements and business necessity.
  • Keeping all arrest and criminal records confidential.
  • Finding out what exactly the candidate had been convicted for.
  • Providing effective training to managers, hiring officials, and decision makers on how to implement the policy and stay true to Title VII.