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.

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Karen Singley - Manager, Compliance and Consumer Relations

Karen Singley works with ClearStar’s General Counsel and the operations team on compliance issues impacting the background screening industry. She monitors and evaluates current best practice procedures and works closely with the fulfillment team to ensure that the highest quality standards are met. She has over 30 years of experience in the screening industry and has extensive knowledge of federal, state and local legislation and helps provide guidance for adherence. Prior to joining ClearStar in 2009, Karen served in various operational and compliance management positions with 5 national screening companies.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.

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