Last April, the U.S. Equal Employment Opportunity Commission (EEOC) issued criminal background check guidance that has caused consternation among some senior living facility owners. What are the issues and how should companies handle the new guidance?
Noting in its guidance document that the rates of people with criminal records have increased from 1991 to 2001, and that arrest and incarceration rates for that period were higher for African-American and Hispanic men, the EEOC, said Chris Dyer, was concerned companies that automatically disqualify applicants with criminal records may potentially be discriminating.
The EEOC's guidance, said Dyer, who is the founder and CEO of California-based human capital due diligence services firm, PeopleG2, is to basically force companies to use common sense in hiring.
"The EEOC really wants companies to not look at (applicants') criminal history up front," he said. "They want them to bring (applicants) in, interview them, look at their qualifications on an equal playing field and wait until the end of the process to consider whether or not they have been convicted of a crime."
And if the person who is otherwise qualified for the job does have a criminal record, the EEOC wants companies to look at the whole person, Dyer said, considering how long ago the crime took place, if the crime relates to the job being applied for and what the applicant has done with his or her life since the crime.
The Assisted Living Federation of America (ALFA), one of the country's largest member organizations representing senior living communities, gets the EEOC's position said Jackie Kerin, a public policy associate at ALFA.
"ALFA understands the importance of reintegrating former offenders into society, but making the wrong hiring decision in a senior living community can have serious consequences," she said in an email to Healthcare Finance News.
Besides safety concerns for the vulnerable population they are responsible for, Kerin said, senior living communities are bound by state licensure laws and regulations that, at least in some states, may make it impossible for them to comply with both the EEOC's guidance and state laws and regulations.
"Forty-six states require assisted living communities to perform criminal background checks on all job applicants, and many states also list barrier crimes that permanently disqualify candidates from working in assisted living communities," she wrote. "In these states, there is no room for an individualized assessment. Providers can face fines and even lose their licenses if they comply with this guidance strictly as written."
ALFA, Kerin wrote, has submitted comments to the EEOC citing its concerns with the guidance and seeking more clarification about how senior living communities should interpret the guidance and what actions the agency wants senior living communities to take.
From Mark Neuberger's perspective, the EEOC's guidance doesn't change much in terms of the legal obligations senior living communities have to state laws and regulations.
"That might not be totally consistent with the EEOC's position in this area," said Neuberger, "but at the same time if I'm an organization subject to licensure and supervision by my state agency, I'm going to do the best I can to stay in good stead with them ... because if I don't, they can fine me and they can shut me down."
The EEOC has legitimate concerns regarding the impact of criminal background checks on certain minority groups, said Neuberger, who is an attorney with Foley & Lardner and is a member of the firm's labor and employment practice and serves on the senior living and healthcare industry teams. So, what senior living communities have to do, he said, is balance the EEOC guidance with their current legal obligations.
"Employers ought to step back and do an inventory and do an analysis to see if they have any vulnerability," he said, "and if they do, now's the time to fix it."