New EEOC Guidelines Could Require Background Checks for Job Applicants with Criminal Records

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by Brandy Aguilar, Special Projects,

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"PHOENIX -- New employment guidelines just implemented nationwide could change the way companies look at potential hires with criminal records.

Memories are all Sandy and Rudy Padilla Sr. have of their only son. Rudy Padilla Jr. was murdered in December 2005 by Michael Gallardo. The former subcontractor for Cox Communications broke into the family's home while the 20-year-old was sleeping.

“The person that murdered our son, they allowed him to do his own background check and he came back with just a few traffic violations,” Sandy said.

It turns out Gallardo had 16 prior felony convictions. For the past year, the Padillas have been trying to get state legislation passed that would require companies to do criminal background checks.

“What we wanted to do was just ask, ask them to take that extra precaution,” Sandy said.

But companies are now facing a new dilemma because the US Equal Employment Opportunity Commission (EEOC) just released new rules regarding criminal background checks. Not hiring someone based solely on a prior arrest or conviction could now be considered discrimination.

“One of every 17 white men will be incarcerated during their lifetime,” said Mary O’Neill, the regional attorney with the Equal Employment Opportunity Commission. “One in six Latino men will be incarcerated at some time in their life and one in three African American men will be incarcerated at some point of their life.

“That's a big group of people that is adversely impacted by employers having rules that we're never going to hire anybody if they have an arrest,” O’Neill continued.

O'Neill said the new rules don't mean hire criminals.

“The employer has to look and see does this particular conviction make this person unqualified for this particular position,” O’Neill said.

But Chris Mason, who is a labor and employment attorney with Polsinelli and Shughart, said the new EEOC guidance goes too far.

“I think employers are afraid of getting sued,” Mason said. “They'll either stop doing criminal background checks or they won't initiate it when they might have otherwise done so.”

As for the Padillas, they believe some ex-cons deserve a second chance. They just hope employers continue conducting criminal background checks.

“Don't put blinders on,” Sandy said. “Don't have that fear. Stand strong and say we did what we we're supposed to do and we did this to protect customers because we don’t want anybody to end up childless.

To check out more of the EEOC guidelines visit"

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