You have may heard in the news lately that the EEOC has filed lawsuits against BMW and Dollar General based on what the EEOC believes were discriminatory practices based on employee background checks. Nebraska employers can still run background checks, however it is helpful to avoid liability if employers think about the types of convictions that would be a problem for their business, and the age of convictions that are still a problem. For example, if you run a home health equipment company a conviction ten years ago for possession of marijuana might not be very relevant. However, a conviction for identity theft in the last five years could be very important.The EEOC has provided some guidance available here. There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.
Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.
Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when considering the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred. This is also true for a conviction.
The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.
The EEOC also issued a fifty page in depth EEOC Enforcement Guidance that gets into a lot of the specific practices that the EEOC is investigating. One helpful portion of the guide was the section on Employer Best Practices.
The following are examples of best practices for employers who are considering criminal record information when making employment decisions.
• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.
o Identify the criminal offenses based on all available evidence.
• Determine the duration of exclusions for criminal conduct based on all available evidence.
If you are a Nebraska small business owner, or employer, and you have questions about how you can legally use background checks in screening applicants for a job, consider contacting Madathil Law Office. We offer free consultations.
Angela Y. Madathil
Madathil Law Office, LLC
Nebraska Business and Employment Attorney
Serving clients throughout Nebraska.
In Omaha In Lincoln
1625 Farnam Street #830 285 South 68th Street Place, Suite 322
Omaha, NE 68102 Lincoln, NE 68510
T: 402.577.0686
F: 402.415.0635
F: 402.415.0635
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