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New EEOC Rules Could Affect Hiring At Small Businesses

By Cherri Gregg

PHILADELPHIA (CBS) - More than 90 percent of all employers use criminal background checks to screen some job applicants and employees. Now, new EEOC rules on using these checks could affect hiring at small businesses.

In April, the EEOC released a guidance to employers on how to use criminal histories since businesses with more than 15 employees could find themselves vulnerable to discrimination lawsuits.

"A lot of small business owners don't realize that minorities are arrested and convicted at a higher rate than non-minorities," says Kathy Muscarella, Director of HR Services at Mid-Atlantic Employers Association, which advises small to mid-size businesses on human resource issues.

She says businesses should develop a legal policy on how to use background checks and then use it consistently.

"You need to consider what types of positions are in your organization. Do your employees have contact with the public or with children? And then what types of convictions would be bars to employment."

For example, Muscarella says a fraud conviction may prevent an applicant from getting a job in an accounting department, but may not be relevant to other positions.

Muscarella advises business owners to get legal or human resource advice when developing their hiring policies since the laws vary.

"There are certain questions that employers can not ask in employment applications, like 'have you ever been arrested?'  In Philadelphia, because of the 'ban the box' law, you can't ask about convictions either."

Attorney Adrian Moody, of Mood Shields Mincey and Fitzpatrick, litigates employment discrimination cases.  He says employers also need to ensure their screening policy does not cause a disparate impact on certain classes of people:

"If you start affecting a protected class, like racial minorities, you may run into violations of the law."

He says the EEOC guidance makes clear that purposefully discriminating against applicants and employees based on their past could lead to federal liability.

"We are a forgiving society, at least we are supposed to be. I think the law is going along with society and just giving people second chances."

For more info on the EEOC guidance go to

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