OFCCP Directive Focuses on Employer Use of Criminal Background Checks

Contractors beware – OMB NO.: 1250-0006 takes effect IMMEDIATELY.

SUBJECT: Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin

PURPOSE: The purpose of this Directive is to provide information to federal contractors and subcontractors, federally-assisted construction contractors and subcontractors (contractors) and to OFCCP personnel about:

  1. the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations;
  2. the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s Employment and Training Administration (ETA) and Civil Rights Center (CRC); and
  3. the Enforcement Guidance issued by the Equal Employment Opportunity Commission (EEOC) on April 25, 2012.

What does this mean to you as an employer with greater than 15 employees and/or a federal contractor governed by EO 11246?

  1. First and foremost, analyze your data to determine whether or not the screening device creates disparate impact and
  2. if you discover disparate impact ensure that the screening device is validated using the UGESP, or at a minimum, meets three criteria found in EEOC’s Enforcement Guidance:
    • Nature and Gravity of the Offense or Conduct
    • Time That Has Passed Since the Offense, Conduct and/or Completion of the Sentence
    • Nature of the Job Held or Sought
Download a Summary of the EEOC Enforcement Guidance Regarding Criminal Background Checks
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The full OFCCP post can be found here:


Biddle Consulting Group can assist your organization with the development of customized employment tests and/or help you create and validate your tests using TVAP (Test Validation and Analysis Program). To learn more about assistance options visit the links below or give us a call (800-999-0438).

Further Resources:


BCG Releases a Summary of the EEOC’s Recent Decison Regarding the Use of Criminal Background Checks

EEOC Guidance SummaryThe EEOC recently updated its policy regarding the use of criminal history information in the selection process. Employers must justify using arrest and conviction screens  (if they have disparate impact) based on a “business necessity” defense  that includes (at least) three components:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

Jim Kuthy, Ph.D. and Heather Patchell, M.A., consultants with Biddle Consulting Group, have written a full summary of the EEOC’s decision. If you are an employer who utilizes criminal background checks in your employment selection process, you will find the summary very helpful.

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