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The Catch-22 of Criminal-Background-Check Guidance

Though employers have had a few months now to become familiar with the U.S. Equal Employment Occupation Commission’s guidance on the use of criminal background checks, questions and confusion about how best to respond have only grown.

The guidance, issued April 25, is broad in its scope and specificity, essentially recommending that employers now only ask to see criminal records when such inquiries can be proven to be job-related. What this has created — especially in this presidential election year, when a November Republican victory could change the tone and direction of many directives coming out of Washington — “is a very tough Catch-22,” says Gerald L. Maatman Jr., partner at Chicago-based employment law firm Seyfarth Shaw.

“You either hire someone who could hurt your workforce, or you get in trouble for not complying with the EEOC mandate and EEOC enforcement.” “I think the jury’s out on just how possible this [revamping of all hiring practices and training] really is,” he says. “A lot of my clients are saying, ‘I could comply if I had buckets of money to spend to administer this.’ “

In some cases, employers are simply refusing to follow the guideline for fear it will either put them out of business — considering this new cost of training — or create an unsafe working environment, says William Tate, president of Chicago-based HR Plus, a screening-solutions provider.

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