Overregulated: Obama EEOC Criminal Conviction Rules Creating Catch-22 for Employers Print
By Timothy H. Lee
Thursday, December 18 2014
New Obama Administration regulations against considering criminal convictions of job applicants vividly illustrates that increasingly common dilemma.

It's bad enough that federal, state and local governments impose new regulations so rapidly that few employers can even familiarize themselves with them, let alone comply with them. 

Compounding that problem, overzealous bureaucrats and prosecutors sometimes target businesses and people via statutes bearing no logical connection to the behavior in question. 

For example, consider a case currently before the United States Supreme Court.  There, federal prosecutors exploited Sarbanes-Oxley, which Congress passed in 2002 to address financial and accounting misdeeds at publicly traded companies such as Enron, against a commercial fisherman for throwing undersized fish overboard.  Among other provisions, that law criminalized the knowing destruction of "any record, document or tangible object" in order to obstruct investigations.  Fast-forward to 2010, when the Justice Department decided to use it against a Florida fisherman after wildlife officials discovered 72 grouper fish on his boat that didn't meet the 20-inch minimum size requirement.  After the fisherman threw the undersized fish back overboard and caught fish that did meet size requirements, he was charged with destruction of evidence, convicted by a jury and sentenced to jail. 

During oral argument, Justice Antonin Scalia exclaimed, "He could have gotten 20 years!" and asked, "What kind of a sensible prosecution is that?"  On the other end of the Court's ideological spectrum, Justice Stephen Breyer also noted that using Sarbanes-Oxley in this manner would allow prosecutors to target a camper who "picks a flower, knowing you're supposed to let wildflowers blossom."  Hopefully, the Court will reasonably limit the degree to which government officials can prosecute citizens using laws unrelated to the benign facts at issue. 

Another emerging problem, however, threatens even greater difficulty for citizens, businesses and employers than prosecution based upon expansive reading of existing statutes like Sarbanes-Oxley.  Namely, the fact that contradictory laws increasingly place citizens in the impossible position of reconciling conflicting mandates. 

New Obama Administration regulations against considering criminal convictions of job applicants vividly illustrates that increasingly common dilemma. 

Under recent Equal Employment Opportunity Commission (EEOC) guidelines, employers are advised against inquiring into applicants' criminal records.  Instead, businesses must go to the trouble of analyzing such questions as whether convictions relate to the job in question, what rehabilitation has occurred since conviction and when the convictions occurred.  Because the EEOC enforces the nation's employment and discrimination laws both in court and administratively, such microanalyses create needless new headwinds for employers in an already sluggish job creation environment. 

The EEOC has subsequently commenced approximately 100 prosecutions under the guidelines, including one case in which PepsiCo Inc. paid a $3.1 million settlement.  Imagine how many new employees that $3.1 million could have created.  And as detailed in a Wall Street Journal story, security company G4S Secure Solutions has spent "several hundred thousand dollars responding to information requests from the agency during a nearly three-year probe stemming from a complaint filed by a black applicant rejected for a security guard job" due to multiple theft convictions.  G4S vice president Geoff Gerks lamented, "the burden is almost unending on the employer until it meets whatever expectation" the EEOC imposes. 

Part of the problem for employers is that other statutes and court precedent mandate against hiring convicted criminals who may later commit violent or property crimes against other employees, patrons or suppliers.  Moreover, federal courts have explicitly determined that employers are within their rights to decline job applicants on the basis of criminal convictions due to property and safety concerns.  In fact, even the EEOC's website acknowledges that, "There is no federal law that clearly prohibits an employer from asking about arrest and conviction records." 

All of this creates a new Catch-22 paradox for potential employers. 

As observed by the Journal, the burden imposed on struggling and confused employers can be absurd:   

"Eddie Sorrells is evaluating job applicants he knows he can't hire.  The chief operating officer of DSI Security Services, a provider of security guards, is checking out potential employees with felony or certain misdemeanor convictions even though they wouldn't get licensed in many of the 23 states where the firm operates...  Driving the company in that direction are government officials in Washington and elsewhere who want to give people with rap sheets a better shot at a job.  Mr. Sorrells figures the reviews take up hundreds of hours of staff time a year.  'It defies common sense,' said Mr. Sorrells, who is general counsel as well as COO of the Dothan, Alabama family-owned company." 

The United States continues to endure the worst post-recession "recovery" in its recorded history, with hiring sluggish and millions of Americans simply giving up and dropping out of the workforce.  As we seek answers and pursue corrective action, counterproductive and contradictory Obama Administration regulations like this offer a good starting point.