The EEOC guidelines focus on what they call their “Green Factors” — from a 1975 case called Green v. Missouri Pacific Railroad Company — for employers to use to make a determination on how specific criminal conduct may be linked to particular positions. The three Green factors are:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct and/or completion of the sentence; and
- The nature of the job held or sought.
The EEOC has also given us some examples of best practices for employers who consider criminal record information when making employment decisions of any kind. These include:
- Eliminating policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Written Policies On Employee Arrest or Conviction
Whether or not you expect to have an employee arrested any time in the near future, it probably makes sense to develop a written policy for when an employee is arrested. This helps you take action for non-compliance with the policy. For instance, you could mandate that every employee needs to self-report an arrest to their supervisor and be prepared to face an internal investigation. If someone doesn’t comply, it could be grounds for dismissal.