The directive was issued on January 29, 2013 and is effective immediately (see http://www.dol.gov/ofccp/regs/compliance/directives/dir306.htm). The OFCCP endorses and builds upon EEOC guidance on criminal records in employment decisions issued on April 25, 2012 (see https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm). Like the EEOC guidance, the Directive speaks to the two major concerns: (1) disparate treatment (treating minorities more harshly than non-minorities for the same or similar offenses) and (2) adverse impact screening out a disproportionate percentage of minorities than non-minorities.
Additionally, the OFCCP endorses the EEOC’s three elements for “best practices” for determining whether a criminal conduct exclusion is job related and consistent with business necessity, including: (1) the nature and gravity of the conduct, (2) amount of time passed since the offense and/or completion of the sentence; and (3) the nature of the job held or sought. The assessment should be individualized so that they narrowly tailored to job requirements. Additionally, employers should refrain from making inquires about convictions on job applications.
The OFCCP adds to the EEOC guidance the following five Directives.
(1). Contractors should post job announcement with American Job Centers that incorporates TEGL 31-11 on relevance of exclusions based on criminal records to the existing nondiscrimination obligations of public workforce system entities.
(2). Contractors should use a “system” (automated or otherwise) for identification of vacancies that include restrictions based on arrest/conviction records.
(3). Vacancy announcement should incorporate Notice #3 for applicants with criminal record exclusions.
(4). Prior to an exclusion, contractors must heed the Fair Credit Reporting Act (FCRA) requiring permission from applicants for seeking credit information, provision of a copy of the report for applicants, and a summary for applicants of their rights.
(5). Contractors should consider taking advantage of the Work Opportunity Tax Credit (WOTC) and the Federal Bonding Program (FBP), which provides incentives for employer who hire individuals with conviction histories.
An additional point to note is that the EEOC guidance relates to Title VII, which applies only 15 or more employees (for 20 or more weeks in the current or prior year). OFCCP regulations, on the other hand, are based on contract dollars. Thus, the Directive applies in situations where Title VII does not apply (contractors or subcontractors with less than 15 employees) and EEOC regulations apply in situations where OFCCP regulations do not apply (15 or more employees in companies that do not receive federal funds).
by Art Gutman Ph.D., Professor, Florida Institute of Technology