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April 19, 2014

Department of Labor’s Office of Federal Contract Compliance Programs "OFCCP" Issues Enforcement Guidance on Contractors' Use of Arrest and Conviction Records

On January 29, 2013, the Department of Labor’s Office of Federal Contract Compliance Programs issued a Directive. pertaining to federal contractors’ use of arrest and conviction records in making employment decisions.  This Directive is consistent with and incorporates guidance issued by the Equal Employment Opportunity Commission in April 2012.

Both the OFCCP and the EEOC report that racial and ethnic disparities are reflected in incarceration rates and in other criminal history records.  Accordingly, the OFCCP states,

 “[p]olicies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense … are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories.  Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law.”

The Directive describes new procedures for contractors, which it describes as “safeguards to prevent discrimination and promote employment opportunities for formerly-incarcerated individuals and other individuals with criminal records.”  For example, contractors that use an American Job Center or other entity to list job openings, screen job-seekers, or receive referrals of qualified applicants will receive notice that categorical exclusions of individuals based solely on an arrest or conviction history are generally prohibited.  Covered job centers will also be required to use a system for identifying those job postings that include hiring restrictions based on arrest and/or conviction records.  For more information pertaining to the requirements imposed on covered job centers, click here

All federal contractors and subcontractors should take note of the OFCCP’s Directive.  Contractors and subcontractors covered by the Vietnam Era Veterans’ Readjustment Act of 1974 are required to list employment openings with the appropriate state employment security agencies or state employment service delivery system and, therefore, will likely be further impacted by the new job center-related procedures.  

Contact your employment counsel if you have questions about whether you are a federal contractor or subcontractor or are otherwise covered by this Directive.

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About the Author

Martha Zackin, Employment, Attorney, Mintz Levin, Law firm
Of Counsel

Martha is Of Counsel in the firm's Boston office, practicing in the Employment, Labor & Benefits Section. She has more than 20 years of experience advising and representing clients on a broad range of employment law issues and in adversarial proceedings. In her role as an advisor to employers, boards of directors, and executives, Martha regularly provides practical advice and counsel on a wide range of employment-related issues, including employee relations and policy matters, violations of noncompetition, nonsolicitation and nondisclosure agreements, employee...

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