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BLANKET POLICIES TO EXCLUDE APPLICANTS WITH CRIMINAL RECORDS FROM EMPLOYMENT ARE NOW RISKY

May 3, 2012

In late April 2012, the Equal Employment Opportunity Commission (EEOC) issued new guidelines for employers on the use of arrest and conviction records by employers under Title VII.

In general, the new guidelines make it harder for employers to have a blanket policy that excludes anyone with a criminal record.
The EEOC states that while employers may legally consider criminal records for making hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a “disparate impact” on racial and ethnic minorities. Furthermore, an employer wanting to exclude applicants with criminal records would need to show that the exclusion was job-related and consistent with business necessity.

The EEOC, with the updated guidelines, is calling for employers to conduct individualized assessments of job applicants in a way
that examines the nature and gravity of the criminal offense, the time passed since the offense and the nature of the job applied for.

The EEOC is pursuing this area in many ways because of a couple of trends over the past decade. First, there has been a huge
increase of employers accessing computer-based arrest and conviction records. In 1996, 51% of employers conducted criminal back checks on applicants. Today, 90% of employers are doing so. In addition, there are numerous reports of erroneous arrest and conviction records as well as many cases that are supposed to be sealed but being released to employment screeners. The second trend is even more important. Basically, there has been a huge increase in the number of Americans who have been arrested for minor offenses, due to “zero tolerance” policing.

The EEOC guidelines make it clear that an arrest alone is not evidence of illegal conduct or grounds for employment exclusion.
Furthermore, if an applicant does have a criminal conviction, the employer must review the seriousness of the offense, the time that has lapsed since the crime was committed, and the relevance of the crime to the specific job opening.

In summary, if you have an employment policy today where you reject anyone that marks, “yes” to the question, “Have you ever been convicted of a crime?” you could be in violation of the law. The following are some practices to consider regarding the new guidelines:

  1. Review your employment recruitment practices. If you are rejecting every applicant simply because of an arrest or conviction, you need to eliminate this practice.
  2. If you are going to reject an applicant because of a criminal offense, you need to identify the criminal offense based on all evidence, determine the duration of exclusions for criminal conduct based on all evidence, include an written individual assessment of the situation including a written justification for excluding the applicant from employment.
  3. Make sure anyone involved in hiring and employment decision making is aware of the new guidelines and subsequent policy changes in your practices.
  4. When asking questions to an applicant about criminal records, limit inquiries to records for which exclusion would be job-related for the job and/or business necessity.
  5. Make sure that background check information is kept confidential. This includes that you need to seriously consider how you organize your personnel files so that such information as arrest and conviction records are not readily available to
    any hiring decision maker requesting to review a personnel file.

The EEOC guidelines, contained in a 52-page publication, can be downloaded by going towww.eeoc.gov/laws/guidance/arrest_conviction.cfm.

 

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