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Are Pre-Emp Background Checks Illegal? EEOC's New 'Guidelines'

Our wonderfully written sister blog, FindLaw's Philadelphia Employment Law News, recently discussed Pepsico's settlement with the Equal Employment Opportunity Commission for $3.1 million over background checks.

Pepsi used background checks on all potential employees, which included arrest records and convictions. The checks were also done regardless of the importance of job and the relation of the employee's criminal past to their position with the company.

The process resulted in a disparate impact on minority candidates.

The EEOC maintained that background checks should only be done when the applicant's history is "job-related and of business necessity." Pepsi capitulated, cut a check, and changed their internal policies.

Last week, the EEOC released new 'guidelines' about when and where and how background checks should be conducted. The new rules sound a lot like the statements made in the wake of the Pepsi settlement, and some attorneys interpret the new rules to place a presumption that considering criminal history is illegal due to the disparate impact on minorities, reports MSNBC.

In short, if you want to use background checks, you’d be well advised to show that they are necessary and related to the job description, especially if the EEOC does eventually come calling. You also shouldn’t consider really old convictions or arrests that didn’t lead to a conviction.

An EEOC spokeswoman is quoted as saying that the EEOC does not have the authority to ban the use of criminal background checks or arrest records, but they do want to make sure it is done carefully. Otherwise, they might sue you like they did to Pepsi.

The numbers, courtesy of MSNBC, do shed an interesting light on the problem that the EEOC seeks to address. For example, 73% of employers do background checks on all employees. Only one in seventeen white males will see the inside of a prison cell, while one in three black males will.

A disparate impact does seem likely if background checks are used across the board.

However, are there actually any jobs out there where the employee's background is completely irrelevant? Also, though it does make sense on the surface to prohibit the consideration of arrests not leading to conviction, someone with a lengthy list of arrests for larceny that was too clever to ever be convicted probably shouldn't be handling, say, deliveries to a jewelry store.

While the EEOC is pushing forth with the noble cause of protecting the rights of protected classes, they might also be making it more and more difficult to employ anyone in a time where this country needs as many jobs as possible.

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