The EEOC Rescinds Its 2012 Arrest and Conviction Guidance: What Changed and What Didn’t
On October 28, 2026, the Equal Employment Opportunity Commission (EEOC) voted to rescind its 2012 enforcement guidance on employers’ use of arrest and conviction records, effective immediately. For many employers, that guidance shaped how criminal history was reviewed for more than a decade. Here is what the change does, and does not, mean.
What did not change
- Title VII of the Civil Rights Act still prohibits employment discrimination based on race and national origin, including policies that have an unjustified disparate impact.
- The Fair Credit Reporting Act (FCRA) disclosure, authorization, and adverse-action requirements are unaffected.
- State and local fair-chance and ban-the-box laws still apply wherever you hire.
- The EEOC indicated that employers do not need to abandon lawful practices they adopted under the prior guidance.
Arrest records vs. conviction records
An arrest shows that someone was taken into custody, not that they committed an offense. A conviction is a court’s determination of guilt. Many state and local laws restrict or prohibit employers from considering arrests that did not lead to a conviction, so the distinction remains important regardless of federal guidance.
A local example: New York City
Amended rules under New York City’s Fair Chance Act took effect October 30, 2026. Among other changes, the hold period before an employer may take adverse action after a conditional offer increased from three business days to five. Employers hiring in New York City should update their templates and timelines.
The practical takeaway
Weighing the nature of an offense, the time that has passed, and its relevance to the job, through an individualized assessment, remains the safest and most consistent standard. Read more in Individualized Assessment: What It Means and Why It Matters, or visit our Employment Screening Compliance Resources.
General information only — confirm your specific process with qualified employment counsel.
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