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EEOC Guidance Complicates Background Check Process

Some staffing buyers demand criminal background checks for contingent workers. On the other hand, the EEOC is seeking to protect worker rights and ensure that those in protected groups more prone to incarceration aren’t unfairly treated by such checks. The EEOC once had guidelines that were fairly concise. But in April 2012, it made a decision to replace concise and workable guidelines with a 52-page long, somewhat confusing document that leaves a lot of guessing room for employers. Angela Preston, a board member for the NAPBS and general counsel and vice president of compliance for EmployeeScreenIQ, comments that the new guidance says if you want to avoid being investigated you should conduct an individualized assessment, however; there is no meaningful instruction in the guidance on how to take that step. A recommended practice with the new guidance is to not conduct a background check until there’s a conditional job offer. However, that adds time when a check ultimately turns up information that disqualifies a potential candidate. Because the EEOC’s guidance is just guidance and doesn’t have the force of law, it remains to be seen what deference courts will give it as they are not bound by the guidance.

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