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SHRM Newsletter: EEOC Issues New Guidance On Employers And Criminal Records




May 8, 2012

This is Utah SHRM Legal-mail no. 2012-11 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 









EEOC ISSUES NEW GUIDANCE ON EMPLOYERS AND CRIMINAL RECORDS: The Equal Employment Opportunity Commission (EEOC) has issued a new guidance for employers regarding the use of criminal records in employment. Here are some highlights. The Guidance says that employers should not use arrest records alone to deny employment but that the conduct that led to an arrest may be relevant for employment decisions. This underlying conduct must make the person unfit for the employment (classic example- the driver arrested for driving while intoxicated).  Note that some states ban questions about arrests in pre-employment inquiries. The EEOC also recommends that employers, as a best practice, not ask job applicants (in application forms) about conviction records and that such questions only be asked when clearly relevant to the job and where there is a demonstrable nexus between criminal history and the involved job duties. The EEOC did not “ban the box,” i.e. the box found on most forms making such inquiries as some states (e.g. Maryland) have done. In all employment decisions involving criminal history, the EEOC recommends an employer make what is called an ”individualized assessment” of the situation. This is based on a 1975 court decision that said when evaluating criminal history, an employer must analyze factors such as: (1) the nature or gravity of the offense or conduct; (2) the time elapsed since the conviction or completion of sentence; and (3) the nature of the job sought or held.  The EEOC expects that in making such an inquiry, the employer will give the applicant/employee a chance to tell his/her side of the story and will consider extenuating circumstances before making a decision. The EEOC notes that criminal screenings done to comply with federal law will not create liability for an employer if the inquiry does not exceed the scope of review required by that federal law. However, the EEOC guidance did not create a similar safe harbor for compliance with state laws, which the EEOC says are preempted by the federal antidiscrimination laws. The EEOC has noted that state law requirements may provide a legitimate business reason that will shield an employer from liability, but is it not automatic. Employers should consider these highlights and revise policies and practices in light of the same and train appropriate personnel.  You can read the new EEOC guidance here: An EEOC Q & A on the issue is available here:

OTHER RULES ON INQUIRIES ON PROTECTED CHARACTERISTICS: Speaking of pre-employment inquiries and questions about protected classifications, remember that there is a wide list of questions that should not be asked, for example questions about age, race, health, child care, etc. A recent court case involving questions about an employee’s last name is a good case in point. This case involved a manager’s inquiries about an employee’s last name and his alleged mistreatment of her when he learned the name was Iranian. A court has allowed a jury to decide whether the employer’s later decision to discharge this employee was legitimate or was discriminatory. This case is a good example of how discussions of protected characteristics, even if meant to be harmless, can come back to later haunt an employer.

COURTS ENJOIN NLRB POSTING RULE: A couple of federal courts have enjoined the implementation of the new posting rule promulgated by the National Labor Relations Board (NLRB). The new rule would require all employers to post a workplace notice telling employees about the rights to unionize and act in concert to address terms and conditions of employment. A lower court had upheld the power of the NLRB to impose such a rule but that ruling is now on appeal. The rule will remain enjoined pending the outcome of the appeal.

REMINDER TO BEWARE THE UNPAID INTERNSHIP:  With summer on the approach, remember to be cautious in bringing aboard any unpaid interns. The bottom line on interns is that they must be paid unless they are basically just watching. i.e. the organization cannot derive any immediate advantages from the activities of the intern. Most employers will pay interns because they typically cannot set up a scenario where they derive no benefit from an intern’s work. Here is a link to the U.S. Department of Labor (DOL) fact sheet:  This fact sheet lays out this test for unpaid interns: “There are some circumstances under which individuals who participate in ‘for-profit’ private sector internships or training programs may do so without compensation. The Supreme Court has held that the term ‘suffer or permit to work’ [under the Fair Labor Standards Act] cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. The following six criteria must be applied when making this determination:  (1) The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; (2) The internship experience is for the benefit of the intern; (3) The intern does not displace regular employees, but works under close supervision of existing staff; (4) The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;  (5) The intern is not necessarily entitled to a job at the conclusion of the internship; and  (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.”

WHITE HOUSE HOLDS OFF ON ANTI-DISCRIMINATION ORDER: The White House has delayed taking action on a proposed Executive Order prohibiting federal contractors from engaging in discrimination based on sexual orientation or gender identity. The White House likely will reconsider the issue after the 2012 election. Stay tuned for developments!

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.