With the timing of their actual issuance still hanging in the balance, two widely anticipated background-check guidance documents from the U.S. Equal Employment Opportunity Commission are fanning some major flames.
Just last week, the U.S. Chamber of Commerce sent a letter to the Office of Management and Budget saying the EEOC “is now preparing to approve” the two guidance documents — one pertaining to credit-history information and the other to criminal-history information — “without making them available for public comments and without seeking review by the OMB.”
The letter strongly recommends the OMB be given a chance to review them, as it does other complex or controversial EEOC guidance documents. It also notes that, while the EEOC has held public meetings on the two topics at hand, the guidances themselves have not been addressed in a public notice or been afforded public comments in and of itself.
Here is a brief report from the Society for Human Resource Management about the letter, which includes concerns that the documents “will remove or significantly limit the use of two important tools that employers use in hiring and related decisions.”
Here is what we posted on HREOnline™ back in August 2011 after the EEOC held hearings on the role arrest and conviction records should and shouldn’t play in the hiring process. That story, by Dave Shadovitz, is chock-full of comments, some in favor of addressing the negative consequences criminal records have on employment opportunities and some stressing the need to tread ever-so lightly on employers.
I found this alert, posted on the Squire Sanders website just Monday, illustrating that latter concern quite well, including fears the new guidance “will significantly curtail the practice of checking a job candidate’s criminal or credit history, placing the burden on the employer to demonstrate a legitimate business need.” The alert also urges employers to “take this opportunity to ensure that their background-check practices are compliant with the Fair Credit Reporting Act and with state-specific laws and restrictions.”
I did reach out to the EEOC as well and got this note back from Christine Saah Nazer, acting director of communications: “I can tell you that we did receive the letter from the Chamber. The fact is, the Commission has held public meetings on employer use of credt and criminal-background checks and has solicited input from all stakeholder perspectives, and will continue to do so as we examine these issues. I have no information about any new guidance.”
I did not take her last sentence to mean this was all much ado about nothing.