OFCCP’s Directive on Use of Criminal Records

February, 2013


In September 2011, Cascade published ablog post regarding the EEOC’s guidance for employers on the use of criminal histories in hiring (officially published in April 2012). As we have mentioned in other communications, the EEOC and OFCCP have made a conscious effort to partner closely together to share information and identify discrimination in the workplace. It is not surprising that the OFCCP has just issued Directive 306 which follows the EEOC’s guidance on the use of criminal histories for employment decisions by federal contractors.

For federal contractors, the Directive clarifies "the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations” and it reminds contractors of the Enforcement Guidance issued by the EEOC.

This Directive does not change the guidelines published by the EEOC for contractors and it does not require more of federal contractors than employers who are not federal contractors. The OFCCP’s Directive clearly states that contractors are to "be mindful of federal antidiscrimination laws if they choose to rely on job applicants' criminal history records for purposes of employment decisions.” It also reminds contractors of the EEOC’s three factors that must be considered when the employer excludes an applicant from consideration based on their criminal history:

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense, conduct and/or completion of the sentence
  • The nature of the job held or sought

Finally, the Directive describes some "best practices” for federal contractors, which include:

  • Ensuring that policies or procedures that include criminal background checks be "narrowly tailored” to the job’s essential job functions
  • Identifying specific criminal convictions that would exclude an applicant from consideration, and the time lapse from conviction to consideration for employment
  • Removing any application questions about convictions
  • Ensuring all applicant/employee criminal records are kept strictly confidential

What contractors can expect as a result of the publication of Directive 306 is more scrutiny from Compliance Officers over selection processes that include criminal background checks and related processes, such as:

  • Use of an employment application that includes questions about criminal convictions
  • Posting job openings that specifically state applicants with criminal conviction or arrest histories will be excluded from consideration
  • Documented justification for the use criminal background checks in employment selections and proof criminal history that results in an exclusion is clearly job related
  • Proof the contractor clearly considered three factors described above before excluding an applicant based on their criminal history

If you have questions about your current procedures and the use of criminal history records in selection decisions, please contact Cascade and we will be happy to review your processes and advise on potential risks or violations of this Directive.

 

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