The U.S. Department of Labor Office of Federal Contract Compliance Programs (“OFCCP”) has announced it will be reviewing carefully employer consideration of candidate criminal history information for systematic discrimination. OFCCP’s Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin,” issued on January 29, 2013, and effective immediately, applies to all covered federal contractors and subcontractors. 

In the Directive, OFCCP adopts the Equal Employment Opportunity Commission’s 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964,” which requires employers to conduct an individualized assessment of the job-relatedness of a conviction to the job to which the candidate applied. OFCCP also adopted EEOC’s guidance that, where disparate impact occurs, employers must validate their criminal background check policies.

In support of the Directive, OFCCP cites numerous statistics reflecting that minorities are disproportionately disqualified by criminal background checks. For example, OFCCP indicates African Americans make up about 13 percent of the country’s population, but constitute 40 percent of the currently incarcerated population. The Directive also reports that 1 in 15 African-American men and 1 in 36 Hispanic men, as compared to 1 in 106 White men, are incarcerated during their lifetime.

To avoid unnecessary exposure, OFCCP recommends contractors adhere to EEOC’s recommended “best practice” of refraining from inquiring about criminal history on job applications. Where such information is requested, OFCCP urges an “individualized assessment” that is “narrowly tailored to the essential job requirements and actual circumstances under which the jobs are performed.” Such consideration should include (1) the nature or gravity of the offense or conduct; (2) the time elapsed since the offense, conviction, and/or completion of the sentence; and (3) the nature of the job sought or held.

In view of the Directive, federal contractors and subcontractors should:

  • Ensure the use of criminal history information in the hiring process is job-related and consistent with business necessity;
  • Tailor criminal history screens to the situation and include a formal, consistently applied individualized assessment;
  • Periodically conduct adverse impact analyses (under the attorney-client privilege) of criminal history screens and other background checks. If adverse impact occurs, consider validation or changes to the company’s approach to criminal conduct exclusions; and
  • Train staff on how to use and interpret the criminal history information.