Criminal record restrictions in workforce job banks

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_acc.pdf

CLASSIFICATION
    EMPLOYMENT AND TRAINING ADMINISTRATION                  OWI
                ADVISORY SYSTEM                             CORRESPONDENCE SYMBOL
                                                            DWASWS/OWI
           U.S. DEPARTMENT OF LABOR
                                                            DATE
              Washington, D.C. 20210                        May 25, 2012


ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 31-11

TO:             ONE-STOP CAREER CENTERS
                STATE WORKFORCE AGENCIES
                STATE WORKFORCE ADMINISTRATORS
                STATE WORKFORCE LIAISONS
                STATE AND LOCAL WORKFORCE BOARD CHAIRS AND DIRECTORS
                STATE AND LOCAL EQUAL OPPORTUNITY OFFICERS
                STATE LABOR COMMISSIONERS
                WORKFORCE INVESTMENT ACT SECTION 166 INDIAN AND NATIVE
                AMERICAN GRANTEES
                WORKFORCE INVESTMENT ACT SECTION 167 MIGRANT AND
                NATIONAL FARMWORKER JOBS PROGRAM GRANTEES
                SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM GRANTEES
                EMPLOYMENT AND TRAINING ADMINISTRATION REGIONAL
                ADMINISTRATORS
                JOB CORPS CONTRACTORS
                SUB-RECIPIENTS OF DEPARTMENT OF LABOR FINANCIAL
                ASSISTANCE

FROM:           JANE OATES /s/
                Assistant Secretary
                Employment and Training Administration

                NAOMI BARRY-PEREZ /s/
                Acting Director
                Civil Rights Center

SUBJECT:        Update on Complying with Nondiscrimination Provisions: Criminal Record
                Restrictions and Disparate Impact Based on Race and National Origin

1. Purpose. The purpose of this Training and Employment Guidance Letter (TEGL) is to
   provide information about exclusions based on criminal records, and how they are relevant to
   the existing nondiscrimination obligations for the public workforce system and other entities
   (including the “covered entities” listed above) that receive federal financial assistance to
   operate Job Banks, to provide assistance to job seekers in locating and obtaining employment,
   and to assist employers by screening and referring qualified applicants. As explained in this
   TEGL, restrictions based on criminal history records may have a disparate impact on
   members of a particular race or national origin, in violation of federal antidiscrimination laws.

  RESCISSIONS                                               EXPIRATION DATE
  None                                                      Continuing

  This guidance is being issued by the Employment and Training Administration (ETA), in
  conjunction with the Civil Rights Center (CRC).

2. References. 1
      Title VII of the Civil Rights Act of 1964, as amended: 42 U.S.C. 2000e-2(a) (disparate
       treatment), 2000e-2(b) (employment agency practices), 2000e-2(a)(2) and 2000e-2(k)
       (disparate impact by employers and employment agencies), 2000e-3(b) (employment
       agency job postings)
           o Enforcement Guidance: Consideration of Arrest and Conviction Records in
              Employment Decisions Under Title VII of the Civil Rights Act of 1964, as
              amended, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (April 25, 2012),
              http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf

      Title VI of the Civil Rights Act of 1964: 42 U.S.C. 2000d (nondiscrimination by
       recipients of federal financial assistance)
           o 29 C.F.R. 31.3(b)(2) (disparate impact), 31.3(c)(1) (nondiscrimination in
               employment practices), 31.3(d)(1) (selection and referral for employment or
               training)

      Workforce Investment Act (WIA): 29 U.S.C. 2938 (nondiscrimination by recipients of
       federal financial assistance under WIA)
           o 29 C.F.R. 37.2(a)(2) (programs operated by One-Stop partners as part of the One-
               Stop system must comply with nondiscrimination regulations), 37.6(d)(1)
               (administration of programs cannot have discriminatory purpose or effect)

      Wagner-Peyser Act: 20 C.F.R. 652.8(j)(1) (nondiscrimination by recipients of federal
       financial assistance under Wagner-Peyser), 652.8(j)(2) (States must assure that
       discriminatory job orders will not be accepted except where there is a bona fide
       occupational qualification (BFOQ))
3. Background. In recent decades, the number of Americans who have had contact with the
   criminal justice system has increased exponentially. It is estimated that about one in three
   adults now has a criminal history record 2 – which often consists of an arrest that did not lead
   to conviction, a conviction for which the person was not sentenced to a term of incarceration,
   or a conviction for a non-violent crime. On any given day, about 2.3 million people are
   incarcerated. 3 And each year 700,000 people are released from prison 4 and almost 13
   million are admitted to – and released from – local jails. 5
   Racial and ethnic disparities are reflected in incarceration rates: According to the Pew
   Center on the States, one in 106 white men, one in 36 Hispanic men, and one in 15 African
   American men are incarcerated. 6 Additionally, on average one in 31 adults are under
   correctional control (i.e., probation, parole, or incarceration), including one in 45 white
   adults, one in 27 Hispanic adults and one in 11 African American adults. 7 Racial and ethnic
   disparities may also be reflected in other criminal history records. For example, although
   African Americans constitute approximately 13 percent of the overall population, 8 they

                                                 2

   account for 28 percent of those arrested 9 and almost 40 percent of the incarcerated
   population. 10
   Because of these racial and ethnic disparities, employers and agencies within the public
   workforce system should be mindful of federal antidiscrimination laws if they choose to rely
   on job applicants’ criminal history records as a tool to help assess potential risk to
   employees, customers, and business assets. Hiring policies and practices that exclude
   workers with criminal records may run afoul of such laws, which prohibit both intentional
   discrimination on the basis of race, national origin, or other protected bases, and policies or
   practices that have a disparate impact on these protected groups and cannot be justified as job
   related and consistent with business necessity. Policies that exclude people from
   employment or other services based on the mere existence of a criminal history record and
   that do not take into account the age and nature of an offense, for example, are likely to
   unjustifiably restrict the employment opportunities of individuals with conviction histories
   and, due to racial and ethnic disparities in the criminal justice system, are likely to violate
   federal antidiscrimination law. Accordingly, employers and agencies should carefully
   consider their legal obligations before adopting such policies.

   As recognized by the federally-assisted workforce system, which is already engaged in
   promoting job opportunities for people with criminal records through various reentry grants
   and programs, obtaining employment is critical in reducing recidivism and easing the
   reintegration of persons returning from incarceration. Secretary of Labor Hilda Solis
   recently observed that the public workforce system’s mix of strategies, interventions and
   service partnerships must be designed and executed with the goal of helping people with
   criminal records obtain employment that can support them and their families. These efforts
   are consistent with the Federal Interagency Reentry Council’s mission to make communities
   safer by reducing recidivism, assist those returning from prison and jail in becoming
   productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of
   incarceration. 11 As Secretary Solis stated recently: “When someone serves time in our penal
   system, they shouldn’t face a lifetime sentence of unemployment when they are released.
   Those who want to make amends must be given the opportunity to make an honest living.” 12

   This TEGL is intended to help covered entities (and their employer customers) comply with
   their nondiscrimination obligations when serving the population of individuals with criminal
   records, and to ensure that exclusionary policies are not at cross-purposes with the public
   workforce system’s efforts to promote employment opportunities for such workers. This
   TEGL applies to all jobs available through a covered entity’s job bank without regard to
   whether the job is in government or the private sector, including federal contractors and
   subcontractors.

4. Applicable Statutes, Regulations, and Guidance.
   a. The nondiscrimination provisions that apply to the federally-assisted workforce system
      prohibit both “disparate treatment” – intentionally treating members of protected groups
      differently based on their protected status – and “disparate impact” – the use of policies or
      practices that are neutral on their face, but have a disproportionate impact on members of
      protected groups, and are not job related and consistent with business necessity. Although

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  individuals with criminal history records are not a protected group under the applicable
  federal laws, antidiscrimination laws may be implicated when criminal records are being
  considered. For example, studies have shown that employers may treat whites with a
  criminal record more favorably than similarly-situated African Americans with the same
  or similar criminal record, which would be a form of disparate treatment. 13 Likewise, if a
  One-Stop Career Center were to refer a white job seeker with a criminal record for a job,
  but not an equally-qualified Hispanic job seeker with the same or similar criminal record,
  this could constitute disparate treatment. Additionally, One-Stop Career Centers may be
  posting job announcements that categorically exclude people who have any kind of
  conviction or arrest, or screening out job seekers with criminal records by not referring
  them to employers who have stated that they will only accept applicants with “clean”
  criminal records. 14 Because of racial and ethnic disparities reflected in the criminal justice
  system, these policies or practices will likely have a disparate impact on certain protected
  groups, in violation of federal law. 15
b. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., applies to
   employers with 15 or more employees, and prohibits employment discrimination (both
   disparate treatment and disparate impact) based on race, color, religion, sex, or national
   origin. 16 Title VII also contains provisions that specifically address employment agency
   activities. Entities within the public workforce system like the nation’s State Workforce
   Agencies and One-Stop Career Centers may be regarded as “employment agencies” under
   the law. 17 Therefore, they are not permitted to “print or publish or cause to be printed”
   any job announcement that discriminates based on race, color, religion, sex, or national
   origin unless there is a bona fide occupational qualification for a preference based on
   religion, sex, or national origin. 18 In addition, employment agencies are prohibited from
   refusing to refer an individual for employment or otherwise to discriminate against any
   individual based on race, color, religion, sex, or national origin. 19 The Equal Employment
   Opportunity Commission (EEOC), the federal agency that administers and enforces Title
   VII, has issued guidance on the use of arrest and conviction records in employment
   decisions (see attached summary and best practices; for full guidance see:
   http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf). 20
c. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, applies to all programs or
   activities receiving federal financial assistance, such as the covered entities referred to in
   this TEGL that receive assistance under the Workforce Investment Act and/or the Wagner-
   Peyser Act. Title VI and its implementing regulations prohibit any program or activity
   from excluding from participation in or denying the benefits of the program, or otherwise
   subjecting anyone to discrimination, on the ground of race, color, or national origin. 21 As
   a condition of initiating or continuing federal financial assistance, recipients must provide
   assurances that “the program will be conducted or the facility operated in compliance with
   all requirements imposed by” the nondiscrimination provision in Title VI. 22
  Under the Department’s Title VI regulations, recipients may not use any “criteria or
  methods of administration which have the effect of subjecting individuals to
  discrimination because of race, color or national origin.” 23 Further, the “selection, and
  referral of individuals for job openings or training opportunities and all other activities
  performed by or through employment service offices” must be done without regard to


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     race, color, or national origin. 24 Disparate impact claims under Title VI are analyzed using
     principles derived from Title VII disparate impact law. 25
   d. The Workforce Investment Act (WIA) is the key source of federal assistance for state and
      local workforce development activities. The relevant WIA nondiscrimination provision
      states that no “individual shall be excluded from participation in, denied the benefits of,
      subjected to discrimination under, or denied employment in the administration of or in
      connection with, any such program or activity” on the basis of race, color, religion, sex,
      national origin, age, disability, or political affiliation or belief. 26 The regulations
      implementing this provision, administered and enforced by CRC, apply to all programs
      and activities that are operated by One-Stop partners as part of the One-Stop delivery
      system. 27 Similarly, under the Wagner-Peyser Act regulations, states are required to
      assure nondiscrimination regarding any services or activities authorized under that Act. 28
     The WIA nondiscrimination regulations prohibit recipients from using “standards,
     procedures, criteria, or administrative methods” that have the purpose or effect of
     subjecting individuals to discrimination on a prohibited ground due to the recipient’s
     administration of programs providing aid, benefits, services, training or facilities “in any
     manner.” 29 In addition, the Wagner-Peyser Act regulations specifically require states to
     “[a]ssure that discriminatory job orders will not be accepted, except where the stated
     requirement is a bona fide occupational qualification (BFOQ).” 30
5. Covered Entities Should Conduct Their Activities Using Safeguards to Prevent
   Discrimination and Promote Employment Opportunities for Formerly-Incarcerated
   Individuals and Other Individuals with Criminal Records.
   In light of the legal obligations discussed above and the Department’s interest, which it
   shares with the nation’s public workforce system, in promoting employment opportunities for
   people with criminal records, the following guidance regarding specific activities engaged in
   by covered entities is being provided to enhance covered entities’ compliance with
   nondiscrimination requirements. The Department cannot ensure that covered entities will
   ultimately avoid liability under the above-described laws by following this guidance, but the
   guidance represents practical steps to aid compliance with the law.
   a. Posting job announcements in Job Banks.
     When soliciting or obtaining, for posting on-site or on a covered entity’s website or Job
     Bank, vacancy announcements from employers, Business Services Representatives, or
     other sources, policies and procedures should be in place to ensure that, for job postings
     that take criminal records into account, the steps described below are taken.
      When an employer registers with the One-Stop (or other covered entity) to use the
         Job Bank, it should receive the notice that appears as notice #1 attached to this
         TEGL. The notice explains that the covered entity must comply with federal civil
         rights laws which, due to the likely disparate impact of criminal record exclusions
         on protected groups, generally prohibit categorical exclusions of individuals based
         solely on an arrest or conviction history (see attached information from EEOC
         guidance). The notice also provides information to employers about their
         obligations under the Fair Credit Reporting Act, which requires employers to obtain

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      applicants’ permission before asking a background screening company for a
      criminal history report and to provide applicants with a copy of the report and a
      summary of their rights before taking adverse action. Additionally, the notice
      describes the Work Opportunity Tax Credit and the Federal Bonding Program, two
      incentives that support employers’ hiring of individuals with conviction histories.
     Covered entities should use a system (automated or otherwise) for identifying
      vacancy announcements that include hiring restrictions based on arrest and/or
      conviction records. This system may be the same system that entities already use to
      identify other discriminatory language in job postings.
     When job postings that exclude individuals based on arrest and/or conviction history
      have been identified, covered entities should provide employers that have posted
      these vacancy announcements the notice that appears as notice #2 attached to this
      TEGL, which states that in order to ensure that the employer and covered entity are
      in compliance with federal civil rights laws, the employer will be given the
      opportunity to remove or edit the vacancy announcement. The notice and
      opportunity to remove or edit should be provided to the employer whether the
      vacancy announcement has been posted directly with the covered entity or has
      instead been made available in the Job Bank through other means of aggregating job
      postings.
     Any vacancy announcements containing language excluding candidates based on
      criminal history should only remain posted when accompanied by the notice to job
      seekers that appears as notice #3 attached to this TEGL. This notice explains that
      the exclusions in the posting may have an adverse impact on protected groups, as set
      forth in the EEOC guidance. The notice further informs job seekers that individuals
      with criminal history records are not prohibited from applying for the posted
      position.
     Covered entities may wish to retain records of the notices sent to address vacancy
      announcements containing hiring restrictions based on arrest and/or conviction
      records.
     The Department recognizes that covered entities have a variety of systems in place
      to comply with nondiscrimination obligations, and that entities engage with
      employer customers in varying ways. Entities may elect to take other steps that are
      at least equally effective in achieving compliance with their nondiscrimination
      obligations.

b. Screening and referral based on criminal record restrictions.
  When screening or referring individuals for vacancy announcements, job orders,
  training, or other employment-related services:
   Covered entity staff should refrain from screening and refusing to make referrals
      because an applicant has a criminal history record. Job seekers who are referred for
      positions where the job posting takes criminal history into account should receive a
      copy of the attached notice #3 for job seekers along with the job announcement.
   In the event that covered entity staff take into account arrest or conviction history
      for purposes of excluding an individual from the entity’s training programs or other
      employment-related services, staff should follow the EEOC’s arrest and conviction
      guidance. However, nothing in this TEGL prevents covered entity staff from taking

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          into account an individual’s arrest or conviction history for purposes of receiving
          employment-related services or programs designed to aid individuals with arrest or
          conviction histories.

6. Action Requested. Program operators are directed to review their existing policies and
   procedures and make any changes necessary to implement the guidance discussed in this
   TEGL.
7. Contact Information. Inquiries about incentive programs and other efforts to promote
   employment opportunities for people with criminal records should be addressed to the
   appropriate ETA regional or national office. Inquiries about civil rights issues should be
   addressed to CRC, by phone at 202-693-6500 (voice) or 202-693-6516 (TTY); by relay at
   800-877-8339 (TTY/TDD), or (877) 709-5797 or myfedvrs.tv (video); or by e-mail at
   [email protected]. Complaints alleging discrimination by entities in the public
   workforce system may be filed with CRC by postal mail, e-mail, or fax, addressed to Director,
   Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-
   4123, Washington, DC 20210, [email protected], 202-693-6505 (fax).
   Further information about the discrimination complaint process is available on CRC’s website
   at http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm.
Attachments:
       Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record
        Exclusions
       Notice #2 for Employers Regarding Job Posting Containing Criminal Record Exclusions
       Notice #3 for Job Seekers to be Attached to Job Postings with Criminal Record
        Exclusions
       Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment
        Decisions Under Title VII of the Civil Rights Act of 1964, as amended, U.S. EQUAL
        EMP’T OPPORTUNITY COMM’N (April 25, 2012), Summary and Best Practices; for full
        guidance see: http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf.
       EEOC Reentry Myth Buster
       Federal Trade Commission Reentry Myth Buster

1
  Many states and cities have enacted restrictions on employer consideration of arrest and
conviction records. See, e.g., Cal. Lab. Code § 432.7(a); N.Y. Correct. Law §§ 750-755; 18 Pa.
Cons. Stat. § 9125; City of Boston Municipal Code 4-7. Covered entities should familiarize
themselves with their state and local laws as well. The Department of Labor is aware of the
following resources on state and local laws that may be helpful (though the Department cannot
guarantee the accuracy of or otherwise endorse these resources): Margaret Colgate Love, Relief
from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide
(June 2008), available at:
http://www.sentencingproject.org/detail/publication.cfm?publication_id=115; Selection.com,
State Laws and Their Impact on Use of Criminal Records for Employment Purposes, available
at: www.selection.com/_pdfs/statelaw_criminalchecks.pdf; National Employment Law Project,
Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair


                                               7

Barriers to Employment of People with Criminal Records (Feb. 6, 2012), available at:
nelp.3cdn.net/abddb6b65a14826f92_n5m6bz5bp.pdf.
2
  See Written Testimony of Amy Solomon, Senior Advisor to the Asst. Attorney General, Office
of Justice Programs, U.S. Dep’t of Justice (DOJ), at 1 & nn.5-7 (July 26, 2011), submitted for
Equal Employment Opportunity Commission (EEOC) Meeting to Examine Arrest and
Conviction Records as a Hiring Barrier, available at http://www.eeoc.gov/eeoc/meetings/7-26-
11/solomon.cfm (citing DOJ Bureau of Justice Statistics data that over 92 million people have a
criminal history on file in state criminal history repositories and comparing that to Census data
on the number of adults in the U.S.); see also Robert Brame, Michael G. Turner, Raymond
Paternoster & Shawn D. Bushway, “Cumulative Prevalence of Arrest from Ages 8 to 23 in a
National Sample,” 129 Pediatrics 21-27 (Jan. 1, 2012), abstract available at
http://pediatrics.aappublications.org/content/129/1/21.abstract.
3
  Lauren E. Glaze, Correctional Population in the United States, 2010, NCJ 236319 (Bureau of
Justice Statistics Dec. 2011), available at http://www.bjs.gov/content/pub/pdf/cpus10.pdf.
4
  Paul Guerino, Paige M. Harrison & William J. Sabol, Prisoners in 2010, NCJ 236096 (Bureau
of Justice Statistics Dec. 2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf.
5
 Todd D. Minton, Jail Inmates at Midyear, 2010, NCJ 233431 (Bureau of Justice Statistics Apr.
2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/jim10st.pdf.
6
  The Pew Center on the States, One in 100: Behind Bars in America 2008 at 6 (2008),
available at
http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/sentencing_and_corrections/
one_in_100.pdf.
7
  The Pew Center on the States, One in 31: The Long Reach of American Corrections at 5, 7
(2009), available at
http://www.pewstates.org/uploadedFiles/PCS_Assets/2009/PSPP_1in31_report_FINAL_WEB_3
-26-09.pdf.
8
  U.S. Census Bureau, USA QuickFacts 2010, available at
http://quickfacts.census.gov/qfd/states/00000.html.
9
  FBI Uniform Crime Reports 2010, available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-
the-u.s/2010/crime-in-the-u.s.-2010/tables/table-43.
10
   William J. Sabol, Todd D. Minton, & Paige M. Harrison, Prison and Jail Inmates at Midyear
2006, NCJ 217675 (Bureau of Justice Statistics June 2007), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/pjim06.pdf. These racial disparities in the criminal
justice system have been attributed primarily to disparate law enforcement practices and
sentencing policies. See, e.g., Mark Maurer, Justice for All? Challenging Racial Disparities in
the Criminal Justice System, 37 Human Rights (Fall 2010), available at
http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol37_2
010/fall2010/justice_for_all_challenging_racial_disparities_criminal_justice_system.html.

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11
   See Federal Interagency Reentry Council, Mission Statement and Goals, available at
http://www.nationalreentryresourcecenter.org/reentry-council/mission-and-goals.
12
   Remarks of Hilda L. Solis, Secretary of Labor, Workforce Development & Employment
Strategies for the Formerly-Incarcerated (June 21, 2011), available at
https://www.dol.gov/_sec/media/speeches/20110621_EX.htm.
13
   See 42 U.S.C. 2000e-2(a); Devah Pager, The Mark of a Criminal Record, 108 American
Journal of Sociology 937, 957-60 (Mar. 2003), available at
http://www.princeton.edu/~pager/pager_ajs.pdf. See generally Devah Pager & Bruce Western,
Race at Work: The Realities of Race and Criminal Record in the NYC Job Market (NYC
Commission on Human Rights 2005), available at
http://www.nyc.gov/html/cchr/pdf/race_report_web.pdf.
14
   Examples of such job announcements recently found posted in One-Stop Career Center Job
Banks were announcements with the following criminal record exclusions: “No criminal
background”; “Have no criminal history”; “CLEAN criminal background (NO felonies or
misdemeanors).”
15
     See 42 U.S.C. 2000e-2(k)(1)(A)(i).
16
     See 42 U.S.C. 2000e, 2000e-2.
17
   See 42 U.S.C. 2000e(c) (defining “employment agency” as “any person regularly undertaking
with or without compensation to procure employees for an employer or to procure for employees
opportunities to work for an employer”); EEOC Decision No. N-917.002, 1991 WL 11665181,
at *1-2 & n.1 (Sept. 20, 1991) (EEOC policy guidance on “[w]hat constitutes an employment
agency under Title VII,” explaining that a government entity that “regularly refers potential
employees to employers or provides employers with the names of potential employees” is
subject to Title VII as long as at least one of the employers is covered under Title VII).
18
    42 U.S.C. 2000e-3(b). Under the Communications Decency Act of 1996 (CDA), 47 U.S.C.
230, providers of an “interactive computer service,” which could include Internet-based Job
Banks, are shielded from civil liability for posting content created by third parties. In addition,
such services are not liable for taking steps to restrict the availability of third-party material that
the provider considers to be objectionable. See 47 U.S.C. 230(c). Under this statutory safe
harbor, providers such as Craigslist have not been held liable for third-party housing postings
that were alleged to be discriminatory under a posting provision in the Fair Housing Act, 42
U.S.C. 3604(a), that is similar to the Title VII posting provision. See Chicago Lawyers’ Comm.
for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008). The CDA’s
liability shield is only available where the service provider does not create the content; where the
service provider is “responsible, in whole or in part, for the creation or development” of the
content, it can no longer avail itself of the safe-harbor provision. See 47 U.S.C. 230(c)(1) and
(f)(3); FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). Irrespective whether
covered entities may ultimately be able to invoke the CDA’s safe-harbor provision in litigation,

                                                   9

the Department advises that they follow the guidance in this TEGL to ensure compliance with
the applicable nondiscrimination provisions.
19
     42 U.S.C. 2000e-2(b).
20
   The Department’s Office of Federal Contract Compliance Programs (OFCCP) administers
Executive Order 11246, which, similar to Title VII, prohibits covered federal contractors,
federally-assisted construction contractors, and covered subcontractors from discriminating in
employment decisions on the basis of race, color, religion, sex, or national origin. See Executive
Order 11246, as amended. OFCCP enforces the nondiscrimination requirements of Executive
Order 11246 in accordance with Title VII. OFCCP also administers and enforces the Vietnam
Era Veterans Readjustment Assistance Act of 1974, as amended (VEVRAA), which requires
covered federal government contractors to post certain categories of job announcements in the
state workforce agency job bank or with the local employment service delivery system (One-
Stop). See 38 U.S.C. 4212(a)(2).
21
     42 U.S.C. 2000d.
22
     29 C.F.R. 31.6(a) and (b).
23
     29 C.F.R. 31.3(b)(2).
24
     29 C.F.R. 31.3(d)(1)(i).
25
     See New York Urban League, Inc. v. State of New York, 71 F.3d 1031, 1036 (2d Cir. 1995).
26
     29 U.S.C. 2938(a)(2).
27
     29 C.F.R. 37.2(a)(2).
28
     20 C.F.R. 652.8(j)(1).
29
     29 C.F.R. 37.6(d).
30
     20 C.F.R. 652.8(j)(2).

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Attachment 1 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att1.pdf).

Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions

The public workforce system must comply with federal civil rights laws, including those concerning
nondiscrimination in employment. In addition, as explained in the information below provided by the Equal
Employment Opportunity Commission (EEOC) – the agency that administers and enforces Title VII of the Civil
Rights Act of 1964, as amended – an employer may be liable under Title VII for its use of criminal record
information to make employment decisions, depending on the factual circumstances under which the criminal
records are used.

An employer that submits a job announcement containing restrictions or exclusions based on arrest or conviction
history will have an opportunity to edit or remove the announcement, to help ensure that the employer and the
public workforce system are in compliance with the law.

EEOC Information on Employer Consideration of Arrest and Conviction History

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color,
national origin, religion, or sex. This law does not prohibit an employer from requiring applicants to provide
information about arrests, convictions or incarceration. But, employers may not treat people with the same
criminal records differently because of their race, national origin or another protected characteristic. In addition,
unless required by federal law or regulation, employers may not automatically bar everyone with an arrest or
conviction record from employment. This is because an automatic bar to hiring everyone with a criminal record
is likely to unjustifiably limit the employment opportunities of applicants or workers of certain racial or ethnic
groups.

If an employer’s criminal record exclusion policy or practice has a disparate impact on Title VII-protected
individuals, it must be job related and consistent with business necessity. For greater detail on meeting this
standard, please see the EEOC’s Guidance referenced below.

Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not
assume that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the
employer should allow the person to explain the circumstances of the arrest to determine whether the conduct
underlying the arrest justifies an adverse employment action. These rules apply to all employers that have 15 or
more employees. For more information: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm;
http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm;
http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry_Council_Mythbuster_Employment.
pdf.

Relevant Information from Other Federal Agencies

The Fair Credit Reporting Act (FCRA) imposes a number of obligations on employers that wish to use criminal
background checks to screen applicants. This law requires the employer to obtain the applicant’s permission
before asking a background screening company for a criminal history report, and requires the employer to
provide the applicant with a copy of the report and a summary of the applicant’s rights before the employer takes
an adverse action (such as denying an application for employment) based on information in the criminal history
report. For more information: http://business.ftc.gov/documents/bus08-using-consumer-reportswhat-employers-
need-know.

Employers should also be aware of the Work Opportunity Tax Credit (WOTC) and the Federal Bonding Program
(FBP), two incentives that support employers’ hiring of individuals with conviction histories. The WOTC
provides a credit of 25-40% of first-year wages, or $1,500-$2,400, for employers that hire qualified individuals
with felony convictions. For more information: http://www.doleta.gov/wotc. Through the FBP, funded and
administered by the U.S. Department of Labor, fidelity insurance bonds are available to reimburse the employer
for any loss due to employee theft of money or property, with no employer deductible. For more information:
http://www.bonds4jobs.com/index.html.

The U.S. Department of Labor enforces Title VI of the Civil Rights Act of 1964 as it applies to public workforce
system programs or activities receiving federal financial assistance, as well as the nondiscrimination provisions of
the Workforce Investment and Wagner-Peyser Acts, which fund the public workforce system. Title VI and its
implementing regulations prohibit any program or activity receiving federal financial assistance from excluding
from participation in, or denying the benefits of the program, or otherwise subjecting anyone to discrimination,
on the ground of race, color, or national origin. The nondiscrimination provisions in the laws that fund the public
workforce system apply to discrimination on these bases, as well as discrimination on other grounds including
disability, age, sex, and religion.

Attachment 2 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att2.pdf).

Notice #2 for Employers Regarding Job Postings Containing Criminal Record Exclusions

The public workforce system must comply with federal civil rights laws, including those concerning nondiscrimination
in employment. In addition, as explained in the information below provided by the Equal Employment Opportunity
Commission (EEOC) – the agency that administers and enforces Title VII of the Civil Rights Act of 1964, as amended –
an employer may be liable under Title VII for its use of criminal record information to make employment decisions
depending on the factual circumstances under which the criminal records are used. The workforce system has identified
criminal record exclusions or restrictions in the job announcement submitted for posting by this employer or in a job
announcement referenced in a Job Bank.

The employer should take this opportunity to remove or edit the posting as needed to ensure that the employer and the
public workforce system are in compliance with the law. If the employer wishes to post the announcement as is, the
announcement will be posted along with information about the civil rights laws that may apply to such restrictions.

EEOC Information on Employer Consideration of Arrest and Conviction History

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, national
origin, religion, or sex. This law does not prohibit an employer from requiring applicants to provide information about
arrests, convictions or incarceration. But, employers may not treat people with the same criminal records differently
because of their race, national origin or another protected characteristic. In addition, unless required by federal law or
regulation, employers may not automatically bar everyone with an arrest or conviction record from employment. This
is because an automatic bar to hiring everyone with a criminal record is likely to unjustifiably limit the employment
opportunities of applicants or workers of certain racial or ethnic groups.

If an employer’s criminal record exclusion policy or practice has a disparate impact on Title VII-protected individuals, it
must be job related and consistent with business necessity. For greater detail on meeting this standard, please see the
EEOC’s Guidance referenced below.

Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not assume
that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the employer should
allow the person to explain the circumstances of the arrest to determine whether the conduct underlying the arrest
justifies an adverse employment action. These rules apply to all employers that have 15 or more employees. For more
information: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm;
http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm;
http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry_Council_Mythbuster_Employment.pdf.

Relevant Information from Other Federal Agencies

The Fair Credit Reporting Act (FCRA) imposes a number of obligations on employers that wish to use criminal
background checks to screen applicants. This law requires the employer to obtain the applicant’s permission before
asking a background screening company for a criminal history report, and requires the employer to provide the applicant
with a copy of the report and a summary of the applicant’s rights before the employer takes an adverse action (such as
denying an application for employment) based on information in the criminal history report. For more information:
http://business.ftc.gov/documents/bus08-using-consumer-reportswhat-employers-need-know.

Employers should also be aware of the Work Opportunity Tax Credit (WOTC) and the Federal Bonding Program
(FBP), two incentives that support employers’ hiring of individuals with conviction histories. The WOTC provides a
credit of 25-40% of first-year wages, or $1,500-$2,400, for employers that hire qualified individuals with felony
convictions. For more information: http://www.doleta.gov/wotc. Through the FBP, funded and administered by the
U.S. Department of Labor, fidelity insurance bonds are available to reimburse the employer for any loss due to
employee theft of money or property, with no employer deductible. For more information:
http://www.bonds4jobs.com/index.html.

The U.S. Department of Labor enforces Title VI of the Civil Rights Act of 1964 as it applies to public workforce system
programs or activities receiving federal financial assistance, as well as the nondiscrimination provisions of the
Workforce Investment and Wagner-Peyser Acts, which fund the public workforce system. Title VI and its
implementing regulations prohibit any program or activity receiving federal financial assistance from excluding from

participation in, or denying the benefits of the program, or otherwise subjecting anyone to discrimination, on the ground
of race, color, or national origin. The nondiscrimination provisions in the laws that fund the public workforce system
apply to discrimination on these bases, as well as discrimination on other grounds including disability, age, sex, and
religion.

Attachment 3 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att3.pdf).

Notice #3 for Job Seekers to be Attached to Job Postings with Criminal Record Exclusions

  Individuals with conviction or arrest histories are not prohibited from applying for this job. The public workforce
  system has identified criminal record exclusions or restrictions in the attached job announcement. These
  exclusions or restrictions may be unlawful under certain circumstances. Therefore, the system is providing this
  notice to job seekers. Please see below for more information.

  Information from the Equal Employment Opportunity Commission (EEOC) on Employer Consideration
  of Arrest and Conviction History

  Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color,
  national origin, religion, or sex. This law does not prohibit an employer from requiring applicants to provide
  information about arrests, convictions or incarceration. But, employers may not treat people with the same
  criminal records differently because of their race, national origin or another protected characteristic. In addition,
  unless required by federal law or regulation, employers may not automatically bar everyone with an arrest or
  conviction record from employment. This is because an automatic bar to hiring everyone with a criminal record
  is likely to unjustifiably limit the employment opportunities of applicants or workers of certain racial or ethnic
  groups.

  If an employer’s criminal record exclusion policy or practice has a disparate impact on Title VII-protected
  individuals, it must be job related and consistent with business necessity. For greater detail on this standard,
  please see the EEOC’s Guidance referenced below.

  Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not
  assume that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the
  employer should allow the person to explain the circumstances of the arrest to determine whether the conduct
  underlying the arrest justifies an adverse employment action. These rules apply to all employers that have 15 or
  more employees, as well as employment agencies that regularly refer potential employees to at least one
  employer covered under Title VII. For more information:
  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm;
  http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm;
  http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry_Council_Mythbuster_Employment.
  pdf.

  For information on filing a discrimination charge with the EEOC: http://www.eeoc.gov/facts/howtofil.html or
  800-669-4000.

  Relevant Information from Other Federal Agencies

  The Fair Credit Reporting Act (FCRA) requires an employer to obtain the applicant’s permission before asking a
  background screening company for a criminal history report, and requires the employer to provide the applicant
  with a copy of the report and a summary of the applicant’s rights before the employer takes an adverse action
  (such as denying an application for employment) based on information in the criminal history report. For more
  information: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre36.shtm.

The U.S. Department of Labor enforces Title VI of the Civil Rights Act of 1964 as it applies to public workforce
system programs or activities receiving federal financial assistance, as well as the nondiscrimination provisions of
the Workforce Investment and Wagner Peyser Acts, which fund the public workforce system. Title VI and its
implementing regulations prohibit any program or activity receiving federal financial assistance from excluding
from participation in, or denying the benefits of the program, or otherwise subjecting anyone to discrimination, on
the ground of race, color, or national origin. The nondiscrimination provisions in the laws that fund the public
workforce system apply to discrimination on these bases, as well as discrimination on other grounds including
disability, age, sex, and religion. Inquiries about civil rights issues in the public workforce system should be
addressed to CRC, by phone at 202-693-6500 (voice) or 202-693-6516 (TTY); by relay at 800-877-8339
(TTY/TDD), or 877-709-5797 or myfedvrs.tv (video); or by e-mail at [email protected]. Complaints

alleging discrimination by entities in the system may be filed with CRC by postal mail, e-mail, or fax, addressed to
Director, Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-4123,
Washington, DC 20210, [email protected], 202-693-6505 (fax). Further information about the
discrimination complaint process is available on CRC’s Web site at
http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm.

Attachment 4 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att4.pdf).

Summary and Best Practices from Equal Employment Opportunity Commission (EEOC)
   Enforcement Guidance on the Consideration of Arrest and Conviction Records in
  Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended,
          42 U.S.C. § 2000e et seq. -- full Enforcement Guidance available at:
                  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

                                                                            Number
                                                                            915.002
          EEOC Enforcement Guidance                                         Date
                                                                            4/25/2012

Summary

         An employer’s use of an individual’s criminal history in making employment
          decisions may, in some instances, violate the prohibition against employment
          discrimination under Title VII of the Civil Rights Act of 1964, as amended.

         The Guidance builds on longstanding court decisions and existing guidance
          documents that the U.S. Equal Employment Opportunity Commission (Commission
          or EEOC) issued over twenty years ago.

         The Guidance focuses on employment discrimination based on race and national
          origin. The Introduction provides information about criminal records, employer
          practices, and Title VII.

         The Guidance discusses the differences between arrest and conviction records.

             The fact of an arrest does not establish that criminal conduct has occurred, and an
              exclusion based on an arrest, in itself, is not job related and consistent with
              business necessity. However, an employer may make an employment decision
              based on the conduct underlying an arrest if the conduct makes the individual
              unfit for the position in question.

             In contrast, a conviction record will usually serve as sufficient evidence that a
              person engaged in particular conduct. In certain circumstances, however, there
              may be reasons for an employer not to rely on the conviction record alone when
              making an employment decision.

         The Guidance discusses disparate treatment and disparate impact analysis under Title
          VII.

             A violation may occur when an employer treats criminal history information
              differently for different applicants or employees, based on their race or national
              origin (disparate treatment liability).

   An employer’s neutral policy (e.g., excluding applicants from employment based
    on certain criminal conduct) may disproportionately impact some individuals
    protected under Title VII, and may violate the law if not job related and
    consistent with business necessity (disparate impact liability).

       o National data supports a finding that criminal record exclusions have a
         disparate impact based on race and national origin. The national data
         provides a basis for the Commission to investigate Title VII disparate
         impact charges challenging criminal record exclusions.

       o Two circumstances in which the Commission believes employers will
         consistently meet the “job related and consistent with business necessity”
         defense are as follows:

              The employer validates the criminal conduct exclusion for the
               position in question in light of the Uniform Guidelines on Employee
               Selection Procedures (if there is data or analysis about criminal
               conduct as related to subsequent work performance or behaviors); or

              The employer develops a targeted screen considering at least the
               nature of the crime, the time elapsed, and the nature of the job (the
               three factors identified by the court in Green v. Missouri Pacific
               Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then
               provides an opportunity for an individualized assessment for those
               people identified by the screen, to determine if the policy as applied is
               job related and consistent with business necessity. (Although Title
               VII does not require individualized assessment in all circumstances,
               the use of a screen that does not include individualized assessment is
               more likely to violate Title VII.).

   Compliance with other federal laws and/or regulations that conflict with Title VII
    is a defense to a charge of discrimination under Title VII.

   State and local laws or regulations are preempted by Title VII if they “purport[]
    to require or permit the doing of any act which would be an unlawful
    employment practice” under Title VII. 42 U.S.C. § 2000e-7.

                                    2

Employer Best Practices

        The following are examples of best practices for employers who are considering criminal
record information when making employment decisions.

General

   Eliminate policies or practices that exclude people from employment based on any criminal
    record.

   Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on
    employment discrimination.

Developing a Policy

   Develop a narrowly tailored written policy and procedure for screening applicants and
    employees for criminal conduct.

       Identify essential job requirements and the actual circumstances under which the jobs are
        performed.

       Determine the specific offenses that may demonstrate unfitness for performing such jobs.

           o Identify the criminal offenses based on all available evidence.

       Determine the duration of exclusions for criminal conduct based on all available
        evidence.

           o Include an individualized assessment.

       Record the justification for the policy and procedures.

       Note and keep a record of consultations and research considered in crafting the policy
        and procedures.

   Train managers, hiring officials, and decisionmakers on how to implement the policy and
    procedures consistent with Title VII.

Questions about Criminal Records

   When asking questions about criminal records, limit inquiries to records for which exclusion
    would be job related for the position in question and consistent with business necessity.

Confidentiality

   Keep information about applicants’ and employees’ criminal records confidential. Only use
    it for the purpose for which it was intended.

Attachment 5 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att5.pdf).

On Hiring/Criminal Records Guidance
                                                                                                                         (Revised Oct. 2012)
REENTRY
MYTH BUSTER!                            A Product of the Federal Interagency Reentry Council

  MYTH: People with criminal records are automatically barred from
        all employment.


  FACT: An arrest or conviction record does NOT automatically bar
        individuals from all employment


On April 25, 2012, the U.S. Equal Employment Opportunity                    be a responsible, reliable, or safe employee. In legal terms, it is not
Commission issued its Enforcement Guidance on the Consideration             “job related and consistent with business necessity.”
of Arrest and Conviction Records in Employment Decisions Under              3) How would an employer prove “job related and consistent
Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42       with business necessity”? Is it burdensome? Proving that a
U.S.C. § 2000e. The Guidance updates, consolidates, and                     criminal record exclusion is “job related and consistent with
supersedes the Commission’s 1987 and 1990 policy statements on              business necessity” is not burdensome. The employer can prove
this issue, as well as the relevant discussion in the EEOC’s 2006           this if it (1) considers at least the nature of the crime, time since
Race and Color Discrimination Compliance Manual Chapter. These              the criminal conduct occurred, and the nature of the job in
rules apply to all employers that have 15 or more employees,                question, and (2) gives an individual who may be excluded by the
including private sector employers, the federal government, and             screen an opportunity to show why he or she should not be
federal contractors. Below are answers to common questions                  excluded.
about the Guidance.
                                                                            4) Why should an arrest record be treated differently than a
1) Does this Guidance prohibit employers from obtaining and                 conviction record?
using criminal background reports about job applicants or                   An arrest record does not establish that a person engaged in
employees? No, the Guidance does not prohibit employers from                criminal conduct. Arrest records may also be inaccurate (e.g.,
obtaining or using arrest or conviction records to make                     mistakenly identify the arrestee) or incomplete (e.g., do not state
employment decisions. The EEOC simply seeks to ensure that such             whether charges were filed or dismissed against the arrestee).
information is not used in a discriminatory way.                            Thus, an arrest record alone should not be used by an employer to
2) How could an employer use criminal history information in a              take an adverse employment action. But, an arrest may trigger an
discriminatory way? Two ways -- First, Title VII prohibits disparate        inquiry into whether the conduct underlying the arrest justifies an
treatment discrimination. Employers should not treat job                    adverse employment action.
applicants or employees with the same criminal records differently
because of their race, national origin, or another protected
                                                                            For More Information:
                                                                            EEOC Enforcement Guidance on the Consideration of Arrest and
characteristic (disparate treatment discrimination). Second, Title
                                                                            Conviction Records in Employment Decisions Under Title VII:
VII prohibits disparate impact discrimination. Employers should
                                                                            http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
not use a policy or practice that excludes people with certain
criminal records if the policy or practice significantly disadvantages      EEOC Questions and Answers About the EEOC’s Enforcement
individuals of a particular race, national origin, or another               Guidance on the Consideration of Arrest and Conviction Records in
protected characteristic, and does not accurately predict who will          Employment Decisions Under Title VII:
                                                                            http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

    What is a REENTRY MYTH BUSTER? This Myth Buster is one in a series of fact sheets intended to clarify existing
    federal policies that affect formerly incarcerated individuals and their families. Each year, more than 700,000 individuals are released from
    state and federal prisons. Another 9 million cycle through local jails. When reentry fails, the social and economic costs are high -- more
    crime, more victims, more family distress, and more pressure on already-strained state and municipal budgets.
    Because reentry intersects with health and housing, education and employment, family, faith, and community well-being, many federal
    agencies are focusing on initiatives for the reentry population. Under the auspices of the Cabinet-level interagency Reentry Council, federal
    agencies are working together to enhance community safety and well-being, assist those returning from prison and jail in becoming
    productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration.
                 For more information about the Reentry Council, go to: www.nationalreentryresourcecenter.org/reentry-council

Attachment 6 (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att6.pdf).

Criminal Histories and Employment
REENTRY                                                      Background Checks

MYTH BUSTER!                            A Product of the Federal Interagency Reentry Council

  MYTH: An employer can get a copy of your criminal history from
        companies that do background checks without your permission.


  FACT: According to the Fair Credit Reporting Act (FCRA), employers
        have to get your okay, usually in writing, before they can ask a
        background screening company for a report on your criminal
        history. If you don’t give your permission or authorization, your
        application for employment may not get a second look. But if you
        don’t get the job because of information in your report, the
        employer has some follow-up legal obligations.


Key Employer Obligations in the FCRA                                      The FTC works to protect consumers from violations of the FCRA and
                                                                          from fraudulent, deceptive and unfair business practices in the
If an employer might use your criminal history report to take an
                                                                          marketplace , and educate them about their rights under the FCRA
“adverse action”– say, to deny your application for employment – he
                                                                          and other consumer protection laws. To file a complaint or get free
must give you a copy of the report and a document called
                                                                          information on consumer issues, visit ftc.gov or call toll-free,
A Summary of Your Rights under the Fair Credit Reporting Act
                                                                          1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. Watch a
before taking the adverse action.
                                                                          video, How to File a Complaint, at ftc.gov/video to learn more. The
If an employer takes an adverse action against you based on               FTC enters consumer complaints into the Consumer Sentinel
information in your criminal history report, he must tell you – orally,   Network, a secure online database and investigative tool used by
in writing, or electronically:                                            hundreds of civil and criminal law enforcement agencies in the U.S.
   the name, address, and telephone number of the company that            and abroad.
   supplied the criminal history report;
   that the company that supplied the criminal history information
   did not make the decision to take the adverse action and can’t                What is a REENTRY MYTH BUSTER?
   give you specific reasons for it; and                                     This Myth Buster is one in a series of fact sheets intended
   about your right to dispute the accuracy or completeness of               to clarify existing federal policies that affect formerly
   any information in your report, and your right to an additional           incarcerated individuals and their families. Each year, more
   free report from the company that supplied the criminal history           than 700,000 individuals are released from state and federal
   report if you ask for it within 60 days of learning the bad news.         prisons. Another 9 million cycle through local jails. When
                                                                             reentry fails, the social and economic costs are high – more
If a reporting company gives an employer a criminal history report           crime, more victims, more family distress, and more pressure
that includes negative information about you gathered from public            on already-strained state and municipal budgets.
criminal records, the company must tell you that it gave the
                                                                             Because reentry intersects with health and housing, education
information to the employer or that it is taking special steps to make
                                                                             and employment, family, faith, and community well-being,
sure the information is complete and up to date.
                                                                             many federal agencies are focusing on initiatives for the
If you think an employer has violated the FCRA, report it to the FTC.        reentry population. Under the auspices of the Cabinet-level
The law allows the FTC, other federal agencies, and states to sue            Interagency Reentry Council, federal agencies are working
employers who don’t comply with the law’s provisions. The FCRA               together to enhance community safety and well-being, assist
also allows people to sue employers in state or federal court for            those returning from prison and jail in becoming productive
certain violations.                                                          citizens, and save taxpayer dollars by lowering the direct and
                                                                             collateral costs of incarceration.
For More Information:
                                                                             For more information about the Reentry Council, go to:
See Credit Reports and Employment Background Checks from the                 www.nationalreentryresourcecenter.org/reentry-council
Federal Trade Commission.