Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions
The public workforce system must comply with federal civil rights laws, including those concerning nondiscrimination in employment. In addition, as explained in the information below provided by the Equal Employment Opportunity Commission (EEOC) – the agency that administers and enforces Title VII of the Civil Rights Act of 1964, as amended – an employer may be liable under Title VII for its use of criminal record information to make employment decisions, depending on the factual circumstances under which the criminal records are used.
An employer that submits a job announcement containing restrictions or exclusions based on arrest or conviction history will have an opportunity to edit or remove the announcement, to help ensure that the employer and the public workforce system are in compliance with the law.
EEOC Information on Employer Consideration of Arrest and Conviction History
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, national origin, religion, or sex. This law does not prohibit an employer from requiring applicants to provide information about arrests, convictions or incarceration. But, employers may not treat people with the same criminal records differently because of their race, national origin or another protected characteristic. In addition, unless required by federal law or regulation, employers may not automatically bar everyone with an arrest or conviction record from employment. This is because an automatic bar to hiring everyone with a criminal record is likely to unjustifiably limit the employment opportunities of applicants or workers of certain racial or ethnic groups.
If an employer’s criminal record exclusion policy or practice has a disparate impact on Title VII-protected individuals, it must be job related and consistent with business necessity. For greater detail on meeting this standard, please see the EEOC’s Guidance referenced below.
Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not assume that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the employer should allow the person to explain the circumstances of the arrest to determine whether the conduct underlying the arrest justifies an adverse employment action. These rules apply to all employers that have 15 or more employees. For more information: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm; http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry_Council_Mythbuster_Employment.pdf.
Relevant Information from Other Federal Agencies
The Fair Credit Reporting Act (FCRA) imposes a number of obligations on employers that wish to use criminal background checks to screen applicants. This law requires the employer to obtain the applicant’s permission before asking a background screening company for a criminal history report, and requires the employer to provide the applicant with a copy of the report and a summary of the applicant’s rights before the employer takes an adverse action (such as denying an application for employment) based on information in the criminal history report. For more information: http://business.ftc.gov/documents/bus08-using-consumer-reportswhat-employers-need-know.
Employers should also be aware of the Work Opportunity Tax Credit (WOTC) and the Federal Bonding Program (FBP), two incentives that support employers’ hiring of individuals with conviction histories. The WOTC provides a credit of 25-40% of first-year wages, or $1,500-$2,400, for employers that hire qualified individuals with felony convictions. For more information: http://www.doleta.gov/wotc. Through the FBP, funded and administered by the U.S. Department of Labor, fidelity insurance bonds are available to reimburse the employer for any loss due to employee theft of money or property, with no employer deductible. For more information: http://www.bonds4jobs.com/index.html.
The U.S. Department of Labor enforces Title VI of the Civil Rights Act of 1964 as it applies to public workforce system programs or activities receiving federal financial assistance, as well as the nondiscrimination provisions of the Workforce Investment and Wagner-Peyser Acts, which fund the public workforce system. Title VI and its implementing regulations prohibit any program or activity receiving federal financial assistance from excluding from participation in, or denying the benefits of the program, or otherwise subjecting anyone to discrimination, on the ground of race, color, or national origin. The nondiscrimination provisions in the laws that fund the public workforce system apply to discrimination on these bases, as well as discrimination on other grounds including disability, age, sex, and religion.