Maintaining proper vigilance with hiring legalities
With regard specifically to criminal records, the Equal Employment Opportunity Commission (EEOC) issued updated guidance explicitly relating to the use of arrest and conviction records in employment decisions.
In its Guidance, the EEOC indicates that employers should develop targeted screening when utilizing criminal records in employment decisions. This targeted screening must, at the very least, consider the following “Green” factors (Green v. Missouri Pacific Railroad, 523 F. 2d 1290 (8th Cir. 1975)):
The Guidance also indicates that targeted screening must be based on a written policy, which according to best practices outlined in the Guidance, must include the following:
If an adverse decision results from the evaluation of the targeted screening policy document, the consumer must be informed prior to making the adverse decision and the employer must offer an “individualized assessment” before the final adverse decision is made. This “individualized assessment”, according to the Guidance document, must be comprised of the following factors:
The EEOC offers the following best practices through the Guidance:
For more information, visit the EEOC's FAQ page.
As marijuana loses its social stigma and becomes legalized across the nation, governments are beginning to pass legislation prohibiting testing of the substance in pre-employment situations.
NYC has become the first city to ban marijuana and THC testing as part of pre-employment screening.