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NSBA testifies on criminal background screening

December 20, 2012

Article courtesy of NSBA, by David Burton

Recently, NSBA President Todd McCracken testified before the U.S. Commission on Civil Rights regarding criminal background screening.  He criticized the recent Equal Employment Opportunity Commission (EEOC) “guidance” regarding criminal background screening.

“I can assure you that virtually no small-business owner is going to be able to read, absorb and apply the 55 page, 167 footnote “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964” issued by the EEOC on April 25, 2012.  More importantly, we have had many discussions with sophisticated attorneys who grapple with these issues for a living , including those that work for large law firms advising large corporations. They do not know how to advise their clients either.  If they are at a loss, then small firms and their generalist attorneys will fare no better,” said McCracken.

The EEOC has not clearly stated what it expects from the small-business community. All the EEOC has done is indicate that it expects small firms to conduct a complex individualized assessment weighing numerous factors regarding the use of conviction records in each hiring decision. How that is to be done in practice is anybody’s guess.

“Employers want to provide a safe place for their employees to work and to do their best to prevent workplace crime. They want to do their best to ensure that the employees that they send to customers’ homes as technicians, repair people or salespeople do not inflict harm on their customers. They need to take steps to prevent theft, fraud and embezzlement. Criminal background screening is an important tool – very nearly the only tool – that employers have to protect their customers, their employees and themselves from criminal behavior,” he said.

McCracken went on to state: “Small businesses are willing to comply with reasonable rules designed to ensure that criminal background screening is not having a disproportionate impact on minorities provided that those rules do not endanger their employees or customers, do not substantially increase their risk of being victims of property crimes or do not increase their risk of being found liable for the tort of negligent hiring.

“Government, however, has an obligation to articulate rules that are comprehensible and can actually be implemented.  It is fundamentally unfair and, in practice, counterproductive for the rules to be so opaque that nobody can understand them.  It leads to a situation where enforcement is starkly arbitrary and the rules, since they cannot be understood, are effectively ignored.”

State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes.  Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.

Small businesses want to know what the rules are so they can comply with those rules and get on with running their businesses.  They want the state and federal governments, including the courts, the legislative branch and the executive branch to set forth consistent and comprehensible rules.  Small businesses should not be at substantial legal risk no matter what they do.

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