Last week, EmployNews reported on the Equal Employment Opportunity Commission's new guidelines on excluding applicants from job positions based on prior criminal convictions. The guidelines state that such policies typically have a disparate impact against African-American and Hispanic applicants. Employers must demonstrate business necessity for the exclusion, typically through an individualized analysis of the relationship between the specific conviction and risks posed by that person in the job applied for.

The new EEOC guidelines also discuss the use of criminal background checks for employees already working for the employer. One example used involved a document destruction business purchased by new owners. The purchasers conducted background checks on the company's employees, and discovered that one employee was convicted of insurance fraud five years ago. The employee has not had any repeat offenses, and has had an exemplary work record for the company.

The EEOC concluded that in its example, excluding the employee from continuing work with the company is not consistent with business necessity. At the time of hire, the fraud conviction may have been adequate to exclude the applicant from employment. However, the EEOC stated that the intervening work history must be taken into account when determining whether the employee poses a risk to the business.

It is not uncommon for employers to learn of criminal convictions after an employee has begun work. If the employee lied about the conviction, this may provide adequate grounds for termination. However, in other cases, under the new EEOC guidelines, the analysis of whether the employee can continue work after discovery of the conviction must include a review of the employee's work performance and trustworthiness while working for the employer.