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Employee Criminal Background Checks Get First Hearing in the 114th Congress

Employee Criminal Background

Legislation that would make employers’ use of credit or criminal records a job-related and business necessity got its first hearing in a House Committee on Education and the Workforce Subcommittee meeting on March 24.  Introduced by Workforce Protections Subcommittee Chairman Tim Walberg (R-Mich.-7), H.R. 548, the “Certainty in Enforcement Act of 2015,” would also prohibit the use of this information as the basis for disparate impact liability.

Rep. Walberg’s bill is in response to enforcement guidance issued by the Equal Employment Opportunity Commission (EEOC) in 2012. Entitled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” the guidance stated that the use of criminal histories could result in employment discrimination under Title VII of the Civil Rights Act of 1964, specifically based upon race or national original and using disparate impact analysis. The EEOC added that the guidance preempted any state or local laws with conflicting requirements for criminal background checks.

Testifying in support of H.R. 548, Gail Heriot, Professor of Law at the University of San Diego and member of the U.S. Commission on Civil Rights, cited as a chief concern the “catch-22” scenario created by the EEOC guidance whereby an employer must pick between following the guidance and ignoring local or state law or following local or state law and ignoring the guidance. Either choice could expose the employer to potential sanction or even legal action. She went on to note the additional concern of the lack of clarity in the guidance for those situations where an employer may “fire, fail to promote or decline to hire an employee on account of his previous convictions.”

Paul Kehoe of Seyfath Shaw LLP on behalf of the U.S Chamber of Commerce, who also testified in support of H.R. 548, discussed the lack of notice and comment on the guidance before it was issued and that “…the EEOC provided no guidance on how an employer should weigh competing federal and state interests, other than to say that an employer will have to establish that a screen based on state law is job related and consistent with business necessity.” He went on to note the expense of proving business necessity (to avoid a disparate impact claim) and the threat of lengthy legal action by the EEOC.

There was a substantive amount of questioning from members of the Subcommittee which itself revealed acutely different viewpoints on both the EEOC guidance and the potential impact of H.R. 548. This debate will continue as the legislative process moves forward. Currently, there is no companion legislation in the Senate to Rep. Walberg’s bill. NAA members have expressed many of the concerns made during the hearing about the EEOC guidance and we continue to monitor the progress of legislative solutions and weigh in where appropriate.


NAA Senior Vice President Greg Brown