OFCCP Issues Criminal Records Directive

March 5, 2013

By: Larry P. Malfitano

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a new Directive on January 29, 2013, consistent with the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The OFCCP’s Directive provides information to Federal contractors and subcontractors, Federally-assisted construction contractors and subcontractors, and to all OFCCP personnel about:  (1) the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing non-discrimination obligations; (2) the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s Employment and Training Administration (“ETA”) and Civil Rights Center (“CRC”); and (3) the Enforcement Guidance issued by the EEOC on April 25, 2012.

According to the Directive, the number of Americans who have had contact with the criminal justice system has increased exponentially in recent years.  In light of the potential racial/ethnic disparities, contractors need to be mindful of Federal and State anti-discrimination laws if they rely on job applicants’ arrest and conviction records in employment decisions.

The Directive also addresses the new procedure under TEGL 31-11 affecting contractors that utilize Federally-assisted workforce systems.  The new TEGL procedures include:

  • when employers register with a covered job bank entity, the job bank entity is required to send the employer a notice explaining that the entity must comply with Federal civil rights laws, which generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history;
  • covered job bank entities are required to use a system to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records;
  • for job postings that exclude individuals based on arrest and/or conviction history, covered job banks are required to provide employers that have posted these vacancy announcements with a notice which gives the employer the opportunity to remove or edit the vacancy; and
  • covered job bank entities are allowed to continue to post job announcements with language excluding candidates based on criminal history only when accompanied by a notice to job seekers explaining that the exclusions in the posting may have an adverse impact on protected groups and inform them that individuals with criminal history records are not prohibited from applying for the posted positions.

Finally, TEGL 31-11 also describes other Federal laws that may affect contractors’ employment practices regarding the use of criminal records in making hiring decisions.  The first is The Fair Credit Reporting Act, which imposes a number of obligations on employers that use criminal background checks to screen applicants.  The others are The Work Opportunity Tax Credit and the Federal Bonding Program, which are incentives to support employers’ hiring of individuals with conviction histories.

The OFCCP’s Directive is effective immediately.