Ways to Minimize EEOC Risk Using Background Checks

The EEOC has noted that use of criminal background information in hiring decisions can result in discrimination against protected classes.  The use of criminal records for employment decision making is not prohibited by federal law.  Still, an employer may be required to establish how the use of criminal records is “job related and consistent with business necessity.”

There are several steps that an employer can take to reduce the risk of utilizing criminal records when making employment decisions:

1. Adopt a written policy or procedure for using criminal conduct in the review of candidates and employees;

2. Obtain criminal record reports  that are “job related for the position in question and consistent with business necessity”;

3. Employ individual review questioning whether the screening process is job-related and consistent with business necessity;

4. Train management and those involved in employment decisions regarding the company policy or procedure;

5. Maintain confidentiality for all criminal records; and

6. Follow the policy or procedure that is adopted.


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About Andrew (Andy) Wampler

For over a decade, I have provided legal services to businesses and individuals in Northeast Tennessee. I spend time litigating breaches of contract, medical malpractice, and commercial disputes and have worked on a number of transactions. I also advise businesses, working much of my time on healthcare and employment matters.

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