Almost a year after the Equal Employment Opportunity Commission (EEOC) updated its enforcement guidance on employers’ use of arrest and conviction records when making employment decisions, OFFCP has issued Directive 306, instructing federal contractors to strongly consider federal anti-discrimination laws before excluding applicants from employment based on criminal history records.
What does this mean to you? OFCCP will be scrutinizing contractors who:
- Consider the existence of criminal history record without taking into account the age and nature of an offense;
- Post job announcements that categorically exclude people who have any kind of conviction or arrest;
- Screen out job seekers with criminal records with statements that they will only accept applicants with “clean” criminal records.
Directive 306 suggests contractors should refrain from inquiring about convictions on job applications altogether. However, if a contractor chooses to consider the criminal record history of applications, OFCCP will expect the inquiry to be limited to only those convictions which are job-related and consistent with business necessity.
Adding another hurdle for contractors, the new Directive also establishes mandatory procedures for contractors that utilize the Federally-Assisted Workforce System to post job announcements.
American Job Centers (and other covered entities) are now required to identify job announcements that include hiring restrictions based on arrest and/or conviction records and send them back to Contractors for either modification or further notification to applicants about the inquiry. The Directive doesn’t say how the job centers are supposed to review and identify each job posting that comes in. Regardless, this sounds like a whole lot of additional work for the job centers and it will be interesting to see how they implement this requirement.
One step ahead of Directive 306, many major cities have joined the reform called “Ban the Box” and have already required employers to remove conviction history questions from job applications. To see if your city is subject to “Ban the Box” restrictions, check out the National Employment Law Project Resource Guide (updated November 2012).