Criminal Background Checks
If you run a healthcare or education organization, criminal background checks are probably standard procedure as part of your hiring process. How you use the results of those background checks with respect to denying employment to an applicant has now changed.
In 2012, the Equal Employment Opportunity Commission (EEOC) regulators approved new rules, calling for careful consideration of how and when such reviews can be used in pre-employment screenings and in the workplace because of their potential to be biased against certain minority groups.
According to an NBC.com report “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders,” said EEOC Chair Jacqueline Berrien."
The document states that employers can only use criminal background checks only when they can show they are job-related and necessary for the business. As an employer you need to consider the "nature of the crime, the time elapsed and the nature of the job."
Don't be confused, the EEOC is not banning the use of arrest or conviction records as a screening device. Their goal is to ensure that they are used appropriately and that employment is not being denied incorrectly. The document seeks to provide guidance in areas including:
- Focusing on criminal record screening and employment discrimination based on race and national origin.
- Discussing the differences between the treatment of arrest and conviction records.
- Reviewing the disparate treatment and disparate impact of such reviews.
Employment at Will Statements
Hopefully you have an employee handbook that details the contractual relationship between your organization and your employees. If you dont, we suggest you download our e-book Best Practices to an Employee Handbook.
If you do have a handbook or an employment contract, it probably refers to employment being "at will" and that the only way to change that status is through a written agreement signed by both the employee and you the employer.
Last year, the National Labor Relations Board (NLRB) held that the "at will" statement may limit an employee's right, for example to unionize, and was a violation of the law. Therefore, we recommend that you have your employment contracts and handbooks reviewed to ensure that the "at will" language is written correctly under the new NLRB guidelines.
Workplace investigations are tricky business for any organization. While the investigation is ongoing, you may demand confidentiality of everyone involved with risk of repercussions if that confidentiality is breached.
The NLRB recently ruled that asking employees to maintain confidentiality illegally limited an employee's rights. Employers can now only demand confidentiality if they articulate a clear and accurate rationale for making the demand.
Therefore, you now have to provide the reasons you are asking for confidentiality at the time of occurrence and then be prepared to justify any repercussions agains the employee who ignores the warning.
As you can see, these are only three small changes to some very important laws and there are more. Keeping up with all of the changes in employee law is challenging. Sign up to stay on top of the latest HR news.
You should carefully weigh the risks and benefits of not ensuring your employment contracts and practices meet new guidelines. The cost of a lawsuit could potentially be much more expensive.
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