The Office of Federal Contract Compliance Programs (OFCCP) Jan. 29 issued a directive, effective immediately, offering information to federal contractors and subcontractors on complying with nondiscrimination provisions, particularly related to criminal record restrictions and discrimination based on race and national origin. 

According to the OFCCP, the directive is designed to provide guidance on:
  1. the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations;
  2. the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 20, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s (DOL) Employment and Training Administration and Civil Rights Center; and
  3.  the Enforcement Guidance issued by the Equal Employment Opportunity Commission on April 25, 2012.
In the Jan. directive, OFCCP begins by discussing racial and ethnic disparities in the criminal justice system and reminds federal contractors and subcontractors to be mindful of federal anti-discrimination laws if they choose to rely on job applicant’s criminal history records for employment decisions. 

The directive states:

“Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate impact on these protected groups and cannot be justified as job related and consistent with business necessity. Policies 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, for example, 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 anti-discrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.”

Employers are encouraged to speak with counsel regarding the OFCCP directive.  

The complete directive is available on the DOL website: