What can you consider when a criminal record comes up in a background check? Two recent developments at the federal level and in New York City offer some context. We take a look at what’s changed and what these updates may mean for your business.
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EEOC Withdraws Criminal History Guidance, But Screening Laws Still Apply
In late October, the Equal Employment Opportunity Commission (EEOC) rescinded its 2012 guidance on how employers should use arrest and conviction records in employment decisions. The withdrawal took effect immediately.
While the decision changes the EEOC’s guidance moving forward, employers must still comply with federal, state, and local laws when conducting background checks. “Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination,” EEOC Chair Andrea Lucas said in a statement announcing the decision.
The former guidance recommended using three factors when considering arrests and convictions for hiring:
- The nature and gravity of the offense
- How much time has passed since the offense
- The nature of the job
Employers can keep using lawful practices they put in place under that guidance.
What Employers Need to Know
With this recent change, it’s a good time to review your screening policy and background check processes. Consider taking these steps:
- Continue following Title VII. If you’re revising your screening policy, review how you handle records and check whether any rule disproportionately screens out people in a group protected under Title VII.
- Train hiring teams to apply screening criteria consistently. Make sure recruiters and hiring managers know how to apply the same criteria in comparable situations and when to pass a decision along for review.
- Review state and local requirements. State and local fair chance laws still apply. Before changing your screening process, check when your team can ask about criminal history and what notices you need to send.
- Document individualized assessments. When you review a conviction record, note what you considered, such as what happened, how long ago it happened, and how it relates to the job. Document those factors and why they mattered to the hiring decision.
New York City Clarifies Fair Chance Act Rules
New York City has amended its Fair Chance Act rules to clarify what steps employers must take before withdrawing a job offer or taking another adverse action based on someone’s criminal history. The amended rules largely come from protections the city put in place in 2021.
The city already restricted employers from asking about criminal history before making a conditional offer. The amended rules clarify that if employers use the same application across multiple locations, telling New York City applicants to skip a criminal history question can still violate that restriction.
The rules also explain what employers must prove before withdrawing an offer because of a criminal record. If they believe the conduct directly relates to the job, they must show how it connects to specific job duties or explain how it poses an “unreasonable risk” to property or people’s safety.
Before employers take adverse action, they must share their written assessment and the criminal history information they gathered. The amended rules now reflect the five-business-day minimum that city law already gave applicants to respond. They also make clear that if an applicant or employee identifies an error that could affect the assessment, employers must redo the review before taking adverse action.
The amended rules went into effect on Oct. 30.
What New York City Employers Need to Know
If you hire in New York City, review your screening process, including how you handle criminal background checks. Focus on these areas:
- Review applications and recruiting materials. Check job ads, application forms, and interview scripts for questions or statements about criminal history that appear before a conditional offer. If you use the same application in multiple locations, look for questions that instruct New York City applicants to skip.
- Train everyone involved in screening decisions. Make sure recruiters know what they can ask before an offer and that HR staff, hiring managers, and screening teams know what to do if a record raises concerns.
- Check your response process. Confirm that you allow at least five business days for applicants to respond once they receive an assessment and supporting information.
Keep Your Screening Process Up-to-Date with InCheck
When a criminal background check comes back with a red flag, you need to know how to proceed. While the EEOC has withdrawn former guidance about conviction records, you still must make decisions consistent with Title VII and local laws. If you hire in New York City, the amended Fair Chance Act rules offer guidance on what you should do before taking adverse action.
InCheck can help you choose background checks that fit the roles you hire for and build a workflow your team can follow consistently. If you’d like to talk through what would work for your business, get in touch.