Criminal background checks now on the OFCCP's radar/ by atty Christine Hendrickson

Feb 14, 2013

In a major surprise, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) joined ranks with the Equal Employment Opportunity Commission (“EEOC”) to target the use of pre-employment criminal background checks.  On January 29, 2013, just one day after Judge Gaughan of the U.S. District Court for the Northern District of Ohio delivered a resounding victory to the employer in EEOC v. Kaplan Higher Education Corp, et al., No. 10-CV-2882, 2013 U.S. Dist. LEXIS 11722 (N.D. Ohio Jan. 28, 2013), dismissing the EEOC’s first lawsuit challenging the use of pre-employment credit reports, the OFCCP issued Directive 306, entitled “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.” Click here for the text of Directive 306.

Directive 306 states that “[p]olicies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense . . . are likely to violate federal antidiscrimination law,” and warns contractors to “carefully consider their legal obligations before adopting such policies.”  Through the Directive, the OFCCP indicates that it will follow the Enforcement Guidance issued by the EEOC on April 25, 2012.  Click here for more information about the EEOC’s Guidance. The EEOC’s Enforcement Guidance recommends a number of "best practices" for employers to avoid liability for discrimination based on the use of criminal records in employment and the OFCCP “commend[s] these best practices to contractors.” 

In addition to adopting by reference the EEOC’s Guidelines with respect to the use of criminal background checks, the OFCCP  also adopted the Training and Employment Guidance Letter (“TEGL”) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department ofLabor's Employment and Training Administration (“ETA”) and Civil Rights Center (“CRC”).  The TEGL advises that covered entities conduct their activities using safeguards to prevent discrimination and promote employment opportunities for formerly-incarcerated individuals and other individuals with criminal records.

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