Because the Equal Employment Opportunity Commission (EEOC) recently issued new guidance on how employers should treat employees and applicants who have an arrest or conviction on their records, we reviewed queries from our subscribers on that topic, and how our legal experts answered them.
Q: One of our employees has been arrested and released under supervision. He can come to work but not perform overtime. Can we terminate him?
A: Your options depend on the particular circumstances. The EEOC takes the position that basing an employment decision solely on an arrest record violates Title VII of federal civil rights law. But the commission also recognizes that "conduct which indicates unsuitability for a particular position is a basis for exclusion. Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified." If you don’t know whether the employee committed the offense for which he was arrested, you may not currently have grounds to terminate him. Another alternative is to put the employee on administrative leave, pending the outcome of his arrest. In any case, we recommend that you consult a local attorney who is familiar with employment law.
Q: One of our employees was recently arrested for stealing. Can we fire him?
A: Our legal experts provided the same information as they did to the first subscriber. In addition, they noted that there is no law in this subscriber’s state prohibiting the use of arrest and conviction records in employment decisions. But the EEOC points out that statistics show that a disproportionate number of minorities have arrest records and that an arrest is not evidence of criminal guilt. Even a conviction is not sufficient reason to reject an employee or candidate unless it is related to the individual’s job. Some employers, our experts noted, place employees who have been arrested on unpaid leave but allow the employee to receive back pay if the arrest does not result in a conviction. And, as they did with the first subscriber, they advised this one to consult with a local employment law attorney.
Q: If we have an applicant’s written permission, can we conduct a criminal background check before we extend an offer of employment?
A: No. Such a check should be done only after you offer an applicant a job, conditioned on the outcome of the check and of any other preemployment screening you conduct. Information you seek in a background check should be job-related. For example, you don’t need to check the driving record of someone who seeks a job doing work processing and who will not be driving company vehicles. Information collected in a background investigation should be kept confidential, distributed only to the appropriate hiring or human resources manager. And, avoid conducting background checks in any way that might be seen as discrimination: If you check one applicant for a particular job, you should check everyone who applies for that same position. Remember that if you hire a third party to conduct background checks for you, you must follow the Fair Credit Reporting Act by obtaining candidates’ signed authorization.