The Office of Federal Contract Compliance Programs ("OFCCP") recently issued a directive to federal contractors and subcontractors on their use of criminal records in the hiring process. Noting that nearly one in three adults now has a criminal record, and that racial and ethnic disparities are reflected in incarceration rates, the OFCCP advised contractors that hiring policies and practices that exclude workers with criminal records may run afoul of anti-discrimination laws. The OFCCP stated that recent guidance issued by the Equal Employment Opportunity Commission ("EEOC") on the use of criminal records will assist contractors in implementing practices that are in compliance with their non-discrimination obligations and in ensuring that any criminal conduct exclusions are job related and consistent with business necessity. In addition, the OFCCP recommended that contractors adhere to the EEOC's suggested "best practices," including requiring individualized assessments that are narrowly tailored to the specific circumstances of the job at issue.
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