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Posted January 22nd, 2013 in Legal Insights

Incriminating the Criminal Background Check

Criminal background checks have become commonplace in today’s employment environment, as computerized records efficiently and systematically reveal potential or existing employees’ run-ins with the law. However, guidance and regulations issued by the U.S. Equal Employment Opportunity Commission (EEOC) suggest that employers could face the threat of government resources and class action litigation when screening criminal backgrounds if they don’t individually consider 1) The nature and gravity of the offense for which the applicant was convicted; 2) The time passed since the conviction and/or completion of the sentence; and 3) The nature of the job held or sought. Nilan Johnson Lewis Shareholder Joseph Schmitt notes that in one recent case, PepsiCo chose to settle out-of-court after encountering such pressure from the EEOC, but he’s clear to inform employers that, despite the EEOC’s interest in creating change through litigation, “there is no law that prohibits criminal background checks.” He also expresses concern over how the EEOC’s opinions often collide with other laws. “A number of industries – banking and daycare, for instance – have requirements that necessitate background checks, so this new pressure would put them between a rock and a hard place.” Contact Joseph Schmitt at (612) 305-7577 or

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