By David S. Harvey, Esquire 

On October 28, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted 2 to 1 to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, effective immediately. For 14 years, that guidance shaped how employers approached criminal history screening, from the distinction between arrests and convictions to the individualized assessment that gave applicants a chance to explain their records. 

So, can employers now screen out anyone with a record? No. And the employers who read this news that way are the ones most likely to end up defending a lawsuit. 

What Changed and What Did Not 

The EEOC made three points worth noting. The agency did not restore the older policy statements the 2012 guidance replaced. Employers are not required to abandon lawful practices they adopted in response to it. Chair Andrea Lucas stated that Title VII still prohibits race and national origin discrimination, including job requirements that serve as proxies for intentional discrimination. 

The takeaway is that the EEOC is stepping back from disparate impact enforcement, consistent with the federal government’s broader shift away from that theory. It is not stepping back from intentional discrimination claims. If a hiring manager overlooks a conviction for one applicant and rejects another with a comparable record, that is still a case the EEOC can bring. 

Who Can Still Sue You 

Any use of arrest or conviction history still carries the risk of a later challenge under a disparate impact analysis. Private plaintiffs can still bring those claims under Title VII, and this vote does nothing to change that. State and local fair chance laws, such as the New York City Fair Chance Act and New Jersey’s Opportunity to Compete Act, are also untouched. The Fair Credit Reporting Act still requires specific notices before and after any adverse action based on a third-party background report. 

Watch for Silent Screens 

One risk I expect to grow is what I call the “silent screen.” That is an automated filter, often built into an applicant tracking system or a vendor’s platform, that rejects anyone with a flagged record before a human ever reviews the file. Silent screens are efficient. They are also the textbook blanket exclusion a private plaintiff can attack, and many employers do not know how their vendor has configured them. 

What Employers Should Do Now 

  1. Keep your individualized assessment process. The EEOC expressly said you may, and it remains your best defense against a disparate impact claim. 
  2. Treat arrests and convictions differently. Rejecting an applicant based on an arrest alone is still hard to defend. 
  3. Ask your background check vendor, in writing, what automated rules apply to criminal history and who approved them. 
  4. Audit your process against the fair chance laws everywhere you hire. 
  5. Confirm your FCRA pre-adverse and adverse action notices are current and actually being sent. 
  6. Train hiring managers to apply the same standard to every applicant. Inconsistency is exactly what supports a disparate treatment claim. 
  7. Document the job-related reason for any decision based on a record. 

Florida employers should also remember that a properly conducted background investigation supports a presumption against negligent hiring under Florida law. The goal is to screen thoughtfully, not to stop screening. 

How We Can Help 

Kelley Kronenberg’s Labor and Employment team is reviewing background check policies for clients in light of this change. Where screening relies on automated tools, our AI Compliance and Governance attorneys can help evaluate vendor configurations, and our Health Law team can address the additional screening rules that apply to healthcare employers. Contact our team to schedule a review before your next hiring cycle.

 

David S. Harvey practices labor and employment law at Kelley Kronenberg, where he counsels employers on wage and hour compliance, DOL investigations, and FLSA defense matters. He represents Florida businesses across all industries in employment-related disputes and compliance issues. Since 2001, David has been Board Certified in Labor and Employment Law by the Florida Bar.

David S. Harvey
Partner and Business Unit Leader, Labor and Employment
Kelley Kronenberg-Tampa, FL.
(813) 223-1697
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