Using Criminal Records in Background Checks

Honestly, I’ve hired some shady individuals in the past and I’ve often considered doing more thorough background checks. There are various laws that impact the use of criminal records for employment purposes, including federal and state nondiscrimination and background screening laws. Below are some helpful guidelines for using criminal records for background screening purposes:

EEO Laws:

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal nondiscrimination laws. The EEOC advises employers to take a nuanced approach to using criminal records when making employment decisions (i.e., evaluating one’s history on a case by case basis as it relates to the position in question) rather than having a blanket policy barring anyone with a criminal record. This is because blanket policies have the potential to exclude applicants and/or employees of certain protected groups.

The EEOC guidelines for using arrest and conviction records are covered below:

Conviction records. The EEOC recommends that where employers are permitted to use conviction records, the conviction records should be job related and consistent with a business necessity. “Business necessity” can be established where the applicant or employee has been convicted of conduct that is particularly egregious or related to the position in question. To make this determination, employers should consider: 1) the nature and gravity of the offense or offenses; 2) the time that has passed since the conviction and/or completion of the sentence; and 3) the nature of the job held or sought.

Arrest records. Because an arrest is not evidence of guilt, there are generally more restrictions on an employer’s ability to use arrest records as compared to conviction records. In jurisdictions where the use of arrest records is permitted, the EEOC says that an employer wishing to use arrest records should not only determine whether the arrest record is job-related (using the 3-part test discussed above) but should also evaluate whether the applicant or employee actually engaged in the alleged misconduct by allowing the person to explain the circumstances of the arrest. Employers must then make a reasonable effort to determine the person’s credibility before making an employment decision. This is a determination that should be made with legal counsel.

State-specific Impact: Many states and some local jurisdictions have specifically prohibited, restricted, or advised against the use of arrest records to make employment decisions. Additionally, some states and jurisdictions limit inquiries into conviction records. Know your specific state restrictions and proceed with extreme caution before asking about arrest records and conviction records.

Background Screening Laws:

The Fair Credit Reporting Act (FCRA) is a federal law that imposes certain requirements on employers that use a third party to conduct background checks. Under the FCRA, these third parties are known as credit reporting agencies, or “CRAs.”

Note: Don’t be misled by the use of the word “credit” in the law. The FCRA’s requirements are not limited to credit checks—if you engage another company to obtain criminal background information about applicants or employees, you are using a CRA and are subject to FCRA requirements.

The FCRA requires that before obtaining a criminal records report from a CRA, employers must:

Notify and obtain consent. Notify the individual (in a separate written document) that a criminal records check will be conducted for employment purposes and obtain the individual’s written authorization.

Follow pre-adverse and adverse action protocol. If an employer thinks it may take an adverse action (e.g. denying employment) based on information contained in the report, the employer must provide the individual with a copy of his or her report, a preliminary notice of adverse action (pre-adverse action notice), and a copy of “A Summary of Your Rights under the Fair Credit Reporting Act” (Summary of Rights). If, after providing the pre-adverse action notice, an employer decides to take adverse action based on the information contained in the report, the employer must send a second notice (adverse action notice) notifying the individual the employer will take adverse action as well as a copy of the Summary of Rights and contact information for the CRA.

State-specific Impact: Some states have enacted their own background screening laws, which may give individuals more rights. Check your state law to ensure compliance.

Best Practice Guidelines:

In light of FCRA requirements as well as the EEOC’s position on criminal records, employers should follow the guidelines outlined below when conducting criminal records checks:

Conduct job-related checks. Before conducting a criminal records check, verify that the information sought is relevant to the job.

Notify applicants and obtain consent. Employers should notify applicants early in the hiring process that criminal background checks are part of the company’s selection process. This is often done in job ads and application materials. In addition to making an upfront disclosure, employers must always obtain written consent from the applicant or employee before performing a background check.

Make conditional job offer first. Employers should conduct criminal history and other types of background checks after they have made a conditional job offer. The job offer should be made in writing and include a statement indicating that the offer is contingent upon successful completion of a criminal background check and any other pre-employment requirements.

Make decisions on a case-by-case basis. Employment decisions that are made based on the results of a criminal record check should be made on a case-by-case basis. When making these decisions, carefully analyze the nature and severity of the offense and the time that has passed since the conviction.

Protect confidentiality. Employers should take steps to secure criminal history information, such as establishing and enforcing security protocols, training employees who will have access to the information, retaining the records in a secure confidential file, and permitting access to only those with a “need to know.”

Train personnel. Anyone involved in the background screening process should be trained to ensure that applicants’ and employees’ criminal history information is used in a way that is consistent with background screening laws as well as company policy.

Work with legal counsel. Employers should work with their legal counsel to review their criminal background check policies and procedures to ensure compliance with federal, state, and local laws.

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