Labor Employment Law Blog

By James Hays, Jonathan Sokolowski, Ashley Hirano, and Gregg Fisch

On April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance on employers’ use of arrest and conviction records when making employment decisions under Title VII of the Civil Rights Act of 1964 (“Title VII”). The EEOC’s guidance (the “Guidance”) is intended to codify and build on its prior policies concerning employers’ use of criminal records. Nevertheless, the Guidance, which is effective immediately, supersedes the EEOC’s prior policies on this issue.

Within the past several years, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (the "OFCCP") has promulgated regulations requiring federal contractors to maintain certain employment records for OFCCP compliance monitoring and other enforcement purposes. These regulations also require federal contractors to be able to identify, where possible, the gender, race and ethnicity of each applicant for employment. On October 7, 2005, the OFCCP issued a new regulation amending those recordkeeping requirements with respect to internet-based job applications. The regulation, which will become effective in February 2006, sets forth the first written standard on the definition of "internet application" for the purpose of the OFCCP's enforcement of non-discrimination laws, and applies to federal contractors who are subject to the OFCCP's recordkeeping provisions.