Use of Arrest and Conviction Records in Employment Decisions

The Equal Employment Opportunity Commission has released an advisory opinion on the use of arrest and conviction records during the hiring process. Though non-binding, you can be sure other agencies will be viewing the advisory to determine the effects on enforcement and audits.

The advisory states the Commission will continue to differentiate between arrest and conviction records.  It appears the Commission may not be prepared to adopt a presumption of disparate impact when looking at an employer’s use of arrest and conviction records.  If the Commission finds a disparate impact on certain groups from the policy, it will closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.

The underlying result is, make your policy fit specific issues associated with the actual position in question.  If a position is truly not dependent on issues associated with the employee’s or applicant’s arrest or conviction record, don’t use that as an issue for dismissal or failure to hire.