Have a No Criminal Record Policy – Screening Potential Employees

by Joe Killinger
CEO, theRRD.com

Fair employment laws require that you only make hiring decisions based on role-related and business-necessity criteria. Therefore, you should avoid bright line policies, such as refusing to hire anyone with any type of criminal record. Often, older and non-serious convictions have little or no bearing on a person’s ability to fulfill the job obligations. Plus, such policies are very likely to get you in trouble with the EEOC and others. Many states are now using ‘ban the box’ laws which prohibit employers from asking about criminal backgrounds on applications. With that said is frowned upon for employers to also have a blanket policy when hiring those with a record. This is one to be really be aware of so as to not end up in a discrimination lawsuit.

Experts advise employers to stay current with the state and federal regulations that govern the use of criminal records in background screening; use a hiring matrix to make consistent decisions; assess applicants individually; and stay in legal compliance by understanding the adverse action and record dispute processes.

If your candidate has a criminal background, the first step is to educate yourself on the top legal issues. Your need to know that you are compliant with the Fair Credit Reporting Act (FCRA) and anti-discrimination laws, she said.

Employers need to know their obligations under the FCRA, employers that obtain an applicant’s criminal history information from consumer reporting agencies must follow the FCRA guidelines. Federal law does not explicitly protect applicants from discrimination based on their criminal records, it does protect against discrimination based on race and ethnicity. The Equal Employment Opportunity Commission (EEOC) published updated guidance on employers’ use of criminal background checks in April 2012 to address its concern that criminal background checks have an unintended discriminatory impact on particular minority groups. When a background check reveals that a candidate has a record, employers need to review the EEOC guidance to ensure the type of offense is taken into account along with the time that has passed since the conviction and the nature of the job held or sought

11 states and 60 municipalities have enacted ban-the-box ordinances prohibiting employers from asking about arrest records at the time of application, according to the National Employment Law Project. These measures mostly apply to public employers, however, four states (Hawaii, Massachusetts, Minnesota and Rhode Island) and a growing number of local governments have passed ban-the-box laws that apply to private employers also.

While none of these measures prohibits checking for criminal records entirely, the laws vary as to when employers can ask about criminal history, also, what employers can ask applicants varies by state. Some laws explicitly prevent employers from asking about non-conviction arrests or expunged records at any time during the hiring process. In some states, certain industries or positions are exempt (such as positions in child care, health care, and financial institutions).