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How to Use Background Checks When Making Hiring Decisions Without Discriminating Under the EEOC’s New Guidelines

Posted by attorney Emily Macheski-Preston

Many employers use some sort of criminal background check or screening before hiring new employees. On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidelines regarding the use of criminal background checks in hiring decisions. According to the EEOC, refusing to hire a potential employee because of a past criminal arrest violates the employee’s federal rights in some circumstances. The EEOC has published a list of guidelines to let employers know what activities the EEOC considers to be “discrimination." Under these guidelines, employers can still use background checks to screen potential employees; however, the employers may expose themselves to liability if they make a hiring decision based on a past conviction or arrest and do not follow the EEOC’s guidelines.

So what should you as an employer do? If your business uses background checks to make hiring decisions, the application process needs to be re-evaluated to ensure your business is following the new guidelines. The EEOC suggests avoiding blanket questions on job applications. For example, “Have you ever been convicted of a crime?" is a blanket question about prior convictions. If you do have a question on the application inquiring about past convictions, do not throw out an application just because of an applicant’s previous arrest or conviction.

The EOCC suggests developing specific job duties for the hiring position and determining which crimes affect the individual’s ability to perform those duties. Then, the employer should limit any questions about the applicant’s criminal background to those specific offenses. For example, theft may be relevant to a cashier position. For a day care, a record of child abuse is certainly relevant. Any conviction used to exclude a prospective employee must be related to the job duties or tasks the employee will perform. For each conviction, you should ask: does this conviction seriously hamper the employee’s ability to do his or her job? If the answer is yes, then you truly will not be able to hire the employee in good faith.

In developing these job duties, however, the employer must also keep in mind other areas of the law. For example, in a previous article I discussed exemptions under the Fair Labor Standards Act. If the employer classifies the employee as “exempt" under the Fair Labor Standards Act, the job duties on the application must support the exemption. Employers need to evaluate and audit their business practices to ensure they are complying with all federal laws, in addition to the EEOC’s new guidelines.

These examples are not exhaustive. The EEOC outlines several other guidelines and suggested best practices for your business. For a full list of the guidelines and the EEOC’s suggested best practices, please contact Emily Macheski-Preston at Coleman Talley LLP by phone (229) 242-7562 or e-mail at

Emily is a litigation attorney with Coleman Talley LLP and practices in employment law (including civil rights and workers’ compensation), local government law, and civil defense. Celebrating its 75th anniversary and with 28 attorneys, Coleman Talley LLP is one of the largest and oldest full-service law firms in South Georgia.

**Disclaimer: This article is a discussion of legal issues. Information from this article should not be relied upon as legal advice and reading this article does not create an attorney-client relationship with the author. Many employment issues are extremely fact-specific and require individual assessment and advice.

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