On January 29, 2013, the U.S. Department of Labor Office of Federal Contract Compliance Programs (“OFCCP”) issued Directive 306, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin.” Effective upon its issuance, Directive 306 applies to all covered federal contractors and subcontractors, and requires contractors to carefully tailor the use of an applicant’s criminal history in employment decisions to avoid violating federal antidiscrimination laws.
The OFCCP supports this directive with statistics showing that that there are racial and ethnic disparities in the nation’s incarceration rates, as one in 15 African American men, one in 36 Hispanic men, and one in 106 white men are incarcerated. In addition, African Americans constitute almost 40 percent of the incarcerated population, while only constituting 13 percent of the overall population. Although individuals with criminal histories are not a protected group under federal antidiscrimination laws, hiring practices designed to exclude persons with criminal records tend to have a disparate impact on protected groups.
In its directive, the OFCCP adopted the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.” Covered federal contractors and subcontractors will now have to show that exclusion based on an individual’s criminal record is “job related and consistent with business necessity.” A contractor can meet this requirement if it validates the criminal conduct exclusion in accordance with the Uniform Guidelines on Employee Selection Procedures (UGESP). Absent such validation, a contractor will need to show their policy “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position,” using the following three factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct, (3) and/or completion of the sentence; and the nature of the job held or sought.
In addition to making an individualized assessment when screening applicants and employees for criminal conduct, the OFCCP also recommends a number of other best practices for federal contractors and subcontractors. Generally, contractors should not inquire about convictions on job applications, but if such inquiries are made, they should be limited to those convictions for which exclusion would be job-related and consistent with business necessity. Contractors should also ensure criminal records of applicants and employees are confidentially kept and only used for the purpose for which it was intended.