Small businesses: EEOC background check guidance ‘confusing’

During a hearing in the U.S. House of Representatives in mid-June, a conversation about employers conducting criminal background checks on prospective employees led to a discussion about whether or not the Equal Employment Opportunity Commission’s Enforcement Guidance is clear and fair to those who own small businesses. The document spans 58 pages, and can occasionally be contradictory to state laws. At the risk of being sued by the EEOC, small businesses may be deterred from conducting any background checks at all, which can put not only its other employees, but also individuals outside the business at risk. Many states require background checks for certain positions, including law enforcement and city and state employees and contractors, but the EEOC can still sue those companies, organizations or entities on the basis of discrimination for failing to meet EEOC standards as laid out in the guidance document. The U.S. Chamber of Commerce accused the EEOC of “questionable enforcement tactics and legal theories” in a report. National Small Business Association president Todd McCracken said that the EEOC’s Enforcement Guidance report is too confusing and complicated for small businesses, which may not understand how to follow contradictory EEOC guidelines and state laws regarding screening, and may therefore decide to forgo background checks altogether in an attempt to avoid lawsuits. “The EEOC has not clearly stated what it expects from the small business community,” McCracken said. “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.” However, those companies that are not required to conduct checks — and therefore may skip the process altogether — may be risking their clients’ or other employees’ safety by not conducting any background checks. The House also took time during the hearing to discuss those individuals who were victims of assault or other felony crimes because they hired a company or service to perform work in or around their homes and the hired contractors had not screened their employees or subcontractors.]]>