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Labor & Employment Law Alert: EEOC Issues New Guidance on the Use of Criminal Background Checks

May 10, 2012

 EEOC Issues New Guidance on the Use of Criminal Background Checks

On April 25, 2012, the EEOC issued a new Enforcement Guidance titled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." The Guidance provides that employer use of arrest and conviction records in making employment decisions is unlawful if it (i) has a disparate impact upon a group protected by Title VII, or (ii) subjects a group protected by Title VII to disparate treatment. According to the EEOC, in order to be lawful, employer use of arrest and conviction records must be "job related and consistent with business necessity."

Employers can meet the "job related and consistent with business necessity" standard in two ways. First, they can meet the standard by validating their use of background screening policies for the position in question by, for example, providing data or analysis showing a link between criminal conduct and subsequent work performance or behaviors. Second, employers can develop a screening process that considers, at a minimum, the nature of the crime, the time elapsed, and the nature of the job, and provides employees with criminal records opportunities for individualized assessments.

The Guidance also provides a number of suggestions for best practices, including eliminating policies or practices that outright exclude individuals from employment based on any criminal record, training hiring managers about Title VII and the appropriate use of a criminal record in employment matters, and developing a narrowly-tailored written policy and procedure for screening potential employees based on their criminal record.

While the EEOC’s Guidance does not carry the force of law, employers should review their policies and procedures and should make adjustments as needed. The full text of the Guidance is available here.

New NLRB Election Rules Are in Effect

In September 2011 we reported on the NLRB’s new representation election rules. These rules went into effect on April 30, 2012. The rules change the procedures by which secret ballot elections are conducted and will likely shorten the time period between the filing of a petition for an election and the holding of an election. This, in turn, will likely shorten the amount of time employers have to mount a campaign against unionization.

On April 26, 2012, the NLRB’s Acting General Counsel Lafe Solomon released guidance Memorandum GC 12-04 and Frequently Asked Questions explaining how NLRB regional offices will implement the new representation election rules. The Memorandum contains a number of requirements, such as the requirement that regional offices schedule hearings within seven days, and the streamlining of pre-election and post-election hearing procedures.

Although the new rules are currently in effect, a lawsuit has been filed challenging the new rules in the U.S. District Court for the District of Columbia. The Court is scheduled to issue its Memorandum Opinion on the merits of the lawsuit by May 15, 2012.

Connecticut Legislative Update

The most recent legislative session ended yesterday, May 9, 2012. While the legislative session was notable more for non-employment reasons, the legislature did pass two employment-related statutes of note. The following is a brief summary of those statutes:

Substitute House Bill No. 5312, "An Act Creating a Process for Family Child Care Providers and Personal Care Attendants to Collectively Bargain with the State." This bill gives collective bargaining rights to certain home care workers and daycare providers. It allows unions representing daycare providers and personal care attendants who are paid through public programs to bargain collectively with the state. The bill is now awaiting Governor Malloy’s signature.

House Bill No. 5389, "An Act Concerning the Palliative Use of Marijuana." This bill permits individuals to use marijuana for palliative purposes, and prohibits employers from refusing to hire, penalizing, or threatening an employee if they qualify as a patient or primary caregiver under the bill. However, the bill prohibits the use of marijuana for palliative purposes in the workplace. Employers may continue to prohibit the illegal use of controlled substances during work hours and discipline an employee for being under the influence of controlled substances during work hours. This bill is now awaiting Governor Malloy’s signature.

We will provide further details as they become available.