Just what is this new guidance supposed to be? I am referring to the EEOC rules on background checks released late last year.
It used to be that staffing firms could conduct a background check on workers and that was it. Yes, there were rules, but it was not rocket science. But now the guidance has staffing firms and its clients spooked.
To be fair, the EEOC has its heart in the right place. It is trying to do something good. The idea is that that use of criminal background checks in employment decisions can be discriminatory. There are different ways by which this bias occurs. The agency is trying to limit employers from unfairly treating some job applicants differently than others or having the checks disproportionally impact a group of workers, as some groups have a higher rate of arrests than others.
The EEOC suggests a certain kind of individualized assessment, involving tremendous detail. And if you don’t comply, the agency will come after you. Moreover, it aims to preempt state law. Both staffing firms and their clients need to be aware of that. Clients need to understand what their staffing firms have to deal with. They need to make it easier for the staffing firm to comply with the new guidelines. Despite the fact that multiple parties (MSP, hiring manager, etc.) may be involved in choosing a temporary/contract employee, the staffing firm is the employer with all the responsibilities and liabilities.
It shouldn’t be difficult to follow the law. But these guidelines don’t make background check situation more palatable. In fact, it’s quite the opposite. The good news — if any — is that these guidelines are just that: guiding principles. They don’t necessarily carry the force of law –courts don’t have to abide by the guidelines. But I would err on the side of caution and advice buyers and suppliers to work together, and follow the guidelines to the extent it’s practical.