What To Do When The Ex-Con Wants A Job

June 12, 2013 at 8:06 am Leave a comment

With the announcement that it is suing two companies for policies that discriminate against the hiring of felons, the Equal Employment Opportunity Commission (EEOC) is sending a message loud and clear that it is dead serious about putting teeth into its guidance released last April stressing that employers can not categorically refuse to hire someone simply because a criminal background check reveals they have been convicted of a crime.

The EEOC’s stance poses unique challenges for credit unions.  On the one hand, the EEOC is signaling that it is taking a hard line on employment policies that cast too wide a net in excluding individuals convicted of crimes from employment, at least in those cases where the job they are seeking is not impacted by their past criminal conduct.  On the other hand, 12 U.S.C. 1785 (d) prohibits credit unions from hiring any person “who has been convicted of any criminal offense involving dishonesty or breach of trust” or who has entered a “pre-trial diversion program” in connection with a prosecution of such an offense.  This categorical ban lasts for 10 years; however, credit unions may apply to the NCUA for a waiver.  It also does not apply to “deminimous” offenses.  In its guidance the EEOC concedes that employers complying with federal mandates in refusing to hire an individual or keep her employed are not violating discrimination law.  However, it is also quick to point out that policies that go beyond what is mandated by federal law could run afoul of discrimination prohibitions.  For example, your credit union could not categorically ban an applicant convicted of a crime in the last 20 years.

So what is a credit union to do?  The best way of trying to meet these employment demands is to establish policies and procedures where each individual applicant will be judged on the specific facts of his or her circumstances.  So, for example, before simply refusing to hire someone who has been convicted of a bannable crime, you should give the applicant an opportunity to explain the facts and circumstances surrounding the offense and determine whether this is someone for whom the credit union should apply for an NCUA waiver.

If this sounds complicated, it is.  So, take the time to call in your HR Director and put a call in to your attorney responsible for handling HR issues.  Now I am going to get on my soapbox for a second.  If anyone from NCUA should happen to read this blog post, it would be extremely helpful if the agency would issue an updated guidance explaining how NCUA’s interpretation of its employment prohibition can best be implemented in light of the EEOC’s policy guidance.

On that note, get to work!

Entry filed under: HR, Regulatory. Tags: , , , , .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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