August 8, 2013. In December 2011, a CareerBuilder/Harris survey revealed that more than two-thirds of companies were affected by a bad hire in the past year. For 41% of those companies, the mistake cost them at least $25,000. New guidelines issued by the U.S. Equal Employment Opportunity Commission (EEOC) in April 2012 appear to 'up the ante' on identifying perceived risks associated with employee applicant background checks. These guidelines reiterate the EEOC’s long-standing policy that criminal history checks alone are not sufficient to determine suitability for hiring. Specifically, the EEOC indicated that while arrest records are not probative that criminal conduct has occurred, convictions are. The agency has also stressed that criminal record exclusions have a “disparate impact” based on race, sex and national origin, for instance involving African-Americans and Hispanics. And most importantly, it has noted that a policy of excluding all applicants with a criminal history—particularly when the issue is not “job-related or consistent with business necessity”—should be avoided (unless required, as it is in certain professions such as trucking, by other federal laws). Employers should review their hiring practices and procedures to determine if EEOC compliance may be at risk. Bruce Smith is an attorney at the Goosmann Law Firm licensed to practice law in the states of Iowa, Nebraska and South Dakota. The firm's practice includes, but is not limited to, representation of clients in business related matters and transactions. Bruce can be reached at (712) 226-4000 or

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