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Confusion remains over background checks

People seeking jobs in Kansas might be interested in knowing more about what is permissible concerning employee background checks. Experts on labor and employment law say there are some instances in which employers routinely violate clear guidelines on what is allowed. The federal rules are there to prevent employment discrimination. The Equal Employment Opportunity Commission is the agency responsible for enforcing federal discrimination laws. Several lawyers with expertise in that area gave clarification of the law at a Nov. 7 American Bar Association meeting. An EEOC lawyer said the enforcement guidelines allow using criminal background checks on employees and prospective employees. However, it doesn't allow using someone's prior arrest record in a discriminatory way. Nevertheless, employers often violate the law by ignoring EEOC guidance that prohibits using arrest records when making hiring decisions, a lawyer with a community legal services firm told attendees.

Presenters said there were some circumstances in which it was not discriminatory to use an arrest record. One example given was when screening applicants for public-safety jobs in police and fire departments. Another was daycare centers checking to make sure applicants did not have prior arrests for child molestation.

If a company changes its policies or sells to another owner, it can subject existing employees to background checks. The EEOC developed guidelines for such situations commonly referred to as the 'Green factors." They must consider how serious the offense was, how long ago it was and whether it has relevance to the job at stake.

It isn't always easy to know if an employer violated the law. An attorney who understands EEOC law could investigate the facts of the situation and determine if an employer violated employee rights. They could pursue a legal case to recover compensation for a client.

Source: Bloomberg, "Gray Areas Remain on Background Checks Under EEOC Guidance, Speakers at ABA Say", Kevin P. McGowan, November 13, 2013

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