Piro Zinna Cifelli Paris & Genitempo, LLC Attorneys at law
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Spoiler alert: FBI background checks don't tell the whole story

The controversy over employers' use of applicants' criminal background checks is heating up. The U.S. Equal Employment Opportunity Commission recently stepped into the fray by filing lawsuits against two employers who disqualified applicants who "failed" their background checks. The attorneys general of nine states -- New Jersey is not among them -- have asked the EEOC to reverse its stand; one of their arguments is that the EEOC is overreaching, because "former criminals" are not a protected class under Title VII of the Civil Rights Act of 1964.

State legislatures and voters are also weighing in on the question by passing laws that prohibit employers from including the "yes/no" question about criminal convictions on job applications. Proponents of ban-the-box initiatives argue that the question penalizes applicants who have "paid their debt to society."

If former prisoners cannot find work merely because they have a record, their futures are fairly bleak -- and in too many cases their futures will include additional criminal acts. Give them a chance to explain, the thinking goes, before you say no. Otherwise, we risk creating a permanent underclass.

There are advocacy groups that would go a step further, though. They would say that anyone with a criminal history is at risk of being a part of that underclass, because criminal histories are often inaccurate.

The National Employment Law Project released a report at the end of July that cautions employers about relying too heavily on FBI records in criminal background checks. The records, the report says, routinely fail to include information about the outcome of an arrest. The applicant may have been exonerated, the charges may have been dismissed, or the charges may have been reduced in a plea agreement.

We'll finish this up in our next post.

Source: Business Insurance, "Worker advocacy group claims FBI criminal background checks are flawed," Judy Greenwald, July 30, 2013

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