OFCCP Issues Directive on Use of Criminal Records in Employment Decisions | Practical Law

OFCCP Issues Directive on Use of Criminal Records in Employment Decisions | Practical Law

The Office of Federal Contract Compliance Programs (OFCCP) released a directive providing federal contractors and subcontractors, federally-assisted construction contractors and subcontractors, and OFCCP personnel with information on criminal record restrictions and anti-discrimination laws. The directive is effective immediately.

OFCCP Issues Directive on Use of Criminal Records in Employment Decisions

Practical Law Legal Update 0-524-0858 (Approx. 4 pages)

OFCCP Issues Directive on Use of Criminal Records in Employment Decisions

by PLC Labor & Employment
Published on 11 Feb 2013 • USA (National/Federal)
The Office of Federal Contract Compliance Programs (OFCCP) released a directive providing federal contractors and subcontractors, federally-assisted construction contractors and subcontractors, and OFCCP personnel with information on criminal record restrictions and anti-discrimination laws. The directive is effective immediately.
The Office of Federal Contract Compliance Programs (OFCCP) issued a directive on January 29, 2013, providing information to federal contractors and subcontractors and federally-assisted construction contractors and subcontractors (contractors), and OFCCP personnel regarding:
  • When excluding applicants or employees based on their criminal records may violate federal anti-discrimination laws.
  • A Training and Employment Guidance Letter (TEGL) that the DOL's Employment and Training Administration (ETA) and Civil Rights Center (CRC) issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system. The TEGL advises these entities on the relevance of criminal records-based exclusions to their existing nondiscrimination obligations.
  • The Enforcement Guidance that the EEOC issued on April 25, 2012 regarding the use of criminal records in employment decisions. For more information on the EEOC's Enforcement Guidance, see Legal Update, EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records.
Hiring policies and practices that exclude people from employment based on their criminal records may violate federal anti-discrimination laws. To avoid liability, the directive suggests that contractors:
  • Follow the best practices listed in the Enforcement Guidance.
  • Ensure that employment screening policies and procedures require an individualized assessment of an applicant's criminal record history.
  • Refrain from inquiring about convictions on job applications.
Contractors that are subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) are required to list all employment openings with an appropriate local employment service office or service delivery system. These contractors and others that use covered entities to list job openings, screen applicants or receive referrals of qualified applicants should follow the procedures outlined in the TEGL when posting job announcements and screening and referring applicants based on their criminal records. The directive also notes that the Fair Credit Reporting Act and the Work Opportunity Tax Credit may affect contractors' employment practices regarding the use of criminal records in hiring decisions. The directive is effective immediately.
For more information and resources on hiring, see Employee Hiring and Orientation Toolkit.