Using Arrest and Conviction Records in Employment Decisions

Using Arrest and Conviction Records in Employment Decisions

When conducting background checks for employment purposes, it is sometimes difficult for an employer to know what should or shouldn’t be considered when making a hiring decision.  While in the process of filling an open position, you may discover that an applicant has a criminal record.  How do you consider an individual’s record when making hiring or other employment decisions?

The FCRA, state and local legislation and best practice policies of screening companies typically dictate what information can be reported to an employer.  However, there are additional factors such as the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., Title VII of the Civil Rights Act, state or local legislation and others that provide guidance and/or impose limitations to employers when using arrest and/or conviction records in making a hiring determination.  There are also further guidelines and specific requirements for hiring in certain industries such as healthcare, financial and educational institutions, etc.

We’ll go through some of the most common guidelines recommended by the EEOC here.

 

EEOC Guidelines

The EEOC offers the following guidance on using criminal records:

  • Treat applicants with similar criminal records consistently
  • Avoid using a policy that excludes individuals with certain criminal records if the policy significantly disadvantages a particular group, race, national origin, etc. and does not accurately predict who will be a responsible, reliable or safe employee.
  • If you must ask about an applicant’s criminal history, wait until later in the hiring process
  • Determine how the applicant’s criminal history relates to the job
  • Treat arrest records differently than convictions. The fact that someone has been arrested does not mean they have committed a criminal act
  • Review the accuracy and relevance of a conviction record before taking action
  • Give applicants an opportunity to explain their criminal history.

The EEOC also recommends that an employer conduct an individualized assessment and a review of the criminal records and provides an opportunity for the applicant to demonstrate that they should not be excluded from the position applied for.  The individual can include such information as:

  • Not being correctly identified in the background report
  • The facts and/or circumstances surrounding the offense
  • The number of offenses in which the individual was convicted
  • Older age at the time of conviction or release from incarceration
  • Evidence of successfully performing similar work for other companies post-conviction/release
  • The length and consistency of employment prior to and after the offense
  • Rehabilitation efforts and/or additional education or training
  • Employment and character references
  • Whether the individual is bonded under a federal, state or local bonding program

If an individual does not respond to an employer’s attempts to obtain additional information, the employer may make a decision without the information.

Additionally, legislation and regulations may impose additional responsibilities and/or restrictions on your hiring practices.

The Fair Credit Reporting Act (FCRA) requires you to take certain steps before you can conduct a background check (Disclosure and Written Authorization) and additional responsibilities you must follow before taking any adverse action (Pre-Adverse and Adverse Action Letters).

There are also “Ban-the-Box” legislation, regulations and ordinances that usually prohibit employers from asking about an applicant’s criminal history information on the initial job application. However, in the last few years, “Ban-the-Box” legislation, regulations and ordinances are much more comprehensive than simply removing the criminal history question from the application and generally impose material additional limitations on employers.

 

For a recent published list of states, cities, and counties with Ban the Box Regulations, please see:

http://www.nelp.org/campaign/ensuring-fair-chance-to-work/

 

Depending on the location where the job is located and where the applicant resides, having a compliant program can be complicated and we recommend that you consult with your legal counsel to develop a consistent, compliant screening and hiring program to ensure federal, state and local guidelines are followed.

 

During these uncertain times, ClearStar understands the impact COVID-19 is having on your business and your screening needs. We are here to support you and will continue to provide you with all the screening services you need to keep your business moving forward. Contact ClearStar and let us know how we can help you recruit and hire the best talent, especially under current circumstances. This is for the record.

For The Public Record is a monthly blog featuring thought leadership from the most seasoned experts at ClearStar, across all functions of the background screening process. Click here to subscribe.

 

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