With the signing of the Office of Federal Contract Compliance Programs' (OFCCP) Directive No, 306, Director Patricia Shiu is taking aim at government contractors that exclude all job applicants who have a criminal record.
The directive bootstraps onto the Equal Employment Opportunity Commission's (EEOC) April 25, 2012 Enforcement Guidance on the use of criminal records to exclude applicants for employment. ( For a discussion of the Enforcement Guidance, see our Alert].
The directive purports to be informational. However, it is effective immediately for federal contractors & subcontractors and construction contractors & subcontractors using the federally assisted workplace system. It conveys to covered entities that they may be violating their existing non-discrimination obligations if they categorically exclude applicants who have a criminal record. It also describes new procedures – referred to as "safeguards" – concerning use of criminal record information by contractors that use the Federally-Assisted Workforce System.
Most of the eight-page directive selectively references evidence supporting a ban on blanket exclusion of applicants having criminal records that was presented to the EEOC at a 2011 public meeting and summarizes the EEOC Enforcement Guidance. It reminds contractors that "[t]he EEOC is the lead agency for interpreting Title VII, and OFCCP follows Title VII principles in interpreting Executive Order 11246..." and it strongly endorses the conclusions and recommendations reached by the EEOC in its 2012 guidance document.
Importantly, the OFCCP directive falls a step short of adopting a per se rule and instructs contractors only that a blanket exclusion may have a disparate impact on black and Hispanic applicants – which is as far as the EEOC Enforcement Guidance goes. It nonetheless must be construed as a warning to contractors that their exclusion of applicants based on criminal records will be closely reviewed by OFCCP for business necessity and job relatedness.
Users of the Public Workforce System
More concrete measures will affect contractors that use entities covered by the federally assisted workplace system (such as local employment services offices) for listing job openings. The use of such entities is required of some contractors under the Vietnam Era Veterans Readjustment Assistance Act (VEVRA), but new rules will cover voluntary use of covered listing entities as well. The new directive places contractors using covered listing agencies on notice of Training and Employment Guidance Letter 31-11 (TEGL 31-11) – a notice by the Labor Department's Employment and Training Administration (ETA) to covered entities in the federally assisted workplace system. According to OFCCP Directive No. 306, contractors must expect that procedures dictated by TEGL 31-11 with respect to posting job announcements and use of criminal records to restrict referral of applicants will be followed by covered entities. Essentially, TEGL requires covered entities to notify employers using their services
- that the federal civil rights laws "generally prohibit categorical exclusions of individuals based solely on an arrest conviction history" (OFCCP Directive 306 5[c][i]) and
- that covered entities will be required to identify contractor vacancy announcements that restrict hiring of applicants with arrest or conviction histories and provide such contractors with a notice that gives it the opportunity to modify or remove the vacancy announcement.
The directive informs covered entities that they may continue to post job vacancy notices that exclude candidates with criminal histories, but only if they post an accompanying notice to potential applicants advising them that the exclusion of applicants with criminal histories may have an adverse impact on protected groups.
Analysis
Contractors that continue to apply blanket exclusions can expect a close examination of the business necessity and job-relatedness of the exclusion on a case-by-case basis. The examination will also include factors such as the nature of the criminal conviction and the time elapsed since the conviction. While not prohibiting blanket exclusions by contractors using the federally assisted workplace system to seek vacancy candidates, the tenor of the notices employers must provide to applicants literally invites a challenge by any protected class member denied a position because of a criminal conviction.
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