Bring HR Policies in Line With New Guidance

Don’t automatically exclude people with criminal histories from employment.

August 20, 2012

Credit unions must bring their employment procedures in line with certain “employer best practices” in response to a controversial “enforcement guidance” the Equal Employment Opportunity Commission (EEOC) issued regarding the consideration of arrest and conviction records in employment decisions.

That’s the word from Kelly Tilden, a shareholder at Farleigh Wada Witt.

She says that while this guidance—effective immediately—isn’t a law, it does reveal how the agency will consider claims of discrimination when someone is denied employment due to an arrest or criminal conviction.

Due to the significant increase in Americans who’ve been arrested or convicted of crimes, the agency has determined that denying employment because of an arrest or criminal conviction can result in unlawful discrimination due to race or national origin.

EEOC’s guidance notes, however, that employers in industries subject to federal statutory or regulatory requirements prohibiting individuals with certain criminal records from holding certain positions must comply with those laws.

“In other words,” Tilden says, “compliance with federal law is a defense.”

The Federal Credit Union Act, for example, specifically prohibits credit unions from hiring employees with convictions relating to dishonesty or breach of trust, or who have completed pretrial diversion programs in connection with prosecution of such an offense.

Tilden says credit unions must take these steps to bring their employment practices in line with EEOC’s expectations:

1. Eliminate policies or practices that exclude people from employment based on simply any criminal record.

2. Train management and other decision makers about Title VII (which prohibits discrimination), and how to apply new policies.

3. Develop narrowly tailored policies for screening applicants and employees that will:

  • Identify essential job requirements and the actual circumstances under which positions are performed;
  • Determine the specific criminal offenses subject to the Federal Credit Union Act prohibition;
  • Determine the specific criminal offenses that may demonstrate unfitness for performing each position;
  • Determine the duration of exclusions for criminal conduct based on all available evidence, including individualized assessments for applicants;
  • Record the justification for the policy and procedures; and
  • Note and record consultations and research considered in crafting the policy and procedures.

4. Limit questions about criminal records to job-related or business-necessity exclusions.

5. Keep confidential the information about applicants’ and employees’ criminal records, and use only for the purpose intended.

"Even though the EEOC acknowledges a conviction is sufficient evidence that an individual has engaged in criminal conduct, it advises against asking about convictions on job applications or early in the application process except for crimes subject to the Federal Credit Union Act,” Tilden says. “The agency recommends that any inquiry into criminal conduct be limited to convictions for which exclusions would be ‘job related and consistent with business necessity.’”

To meet this standard, she says, a credit union must show that specific criminal conduct and its dangers are related to the duties of the particular position.

Credit unions can meet this burden by conducting a “targeted screen”—looking at the nature of the crime, time elapsed, the nature of the job, and an individualized assessment of facts related to the applicant.

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