Donald Livingston Quoted in Corporate Counsel on the Use of Background Checks in the Hiring Process

Donald Livingston, a partner in the labor and employment practice at Akin Gump, was quoted by Corporate Counsel in the article “Crime and Employment: Hiring a Worker With a Record,” which examines the use of criminal background checks during the hiring process.”

According to the article, recent changes in state and municipal laws are forcing companies to be more careful about the way they check for criminal backgrounds. As Livingston points out, “There are variations from place to place, and all these variations do make it difficult for large employers who have facilities established in multiple jurisdictions.”

While the Equal Employment Opportunity Commission (EEOC)’s disparate impact cases involving criminal background checks have not been very successful in the courtroom, the article says prioritization of the issue should give companies pause while making hiring decisions. Livingston, a former EEOC general counsel, noted that those in charge of hiring decisions need to follow commonsense practices and look at each applicant individually before deciding whether a criminal record is disqualifying. Hiring actions that have a disparate impact only are valid if the reasons for excluding people with criminal records are job related and consistent with business necessity under Title VII of the Civil Rights Act.

One of the ways companies can determine if their hiring practices avoid breaking the law, Livingston said, is by asking questions such as “When did the conviction occur? How long ago did it occur? What was the nature of the offense? What is the nature of the job?” In addition, he suggested other factors, including “What steps toward rehabilitation have they gone through?”