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Criminal Records and Convictions: What an Employer Should or Should Not Do When Hiring Employees

So you’re in business and looking to hire an employee. As an employer, what can you legally consider about the candidate’s background when making a hiring decision? If you’re confused, you’re not alone. An employer is subject to many laws and rules; some at the federal level and others at the state level. In this post, we will consider the main federal laws. There are two federal laws that employers must take into account when making hiring decisions based on criminal background checks: The Fair Credit and Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964. Hiring and the Fair Credit Reporting Act

Hiring and the Fair Credit Reporting Act

The FCRA attempts to protect against inaccuracies that may be reported in criminal background checks. It requires that employers must get written approval from the job applicant to request a criminal background check for employment purposes. The FCRA also requires the employer to give notice to the applicant if the employer wishes to disqualify the candidate based on the criminal background check and provide a copy of the report to the job applicant. This means that the applicant knows that he or she will be checked and also has the chance to correct any mistakes.

Hiring and the EEOC’s Position

The Equal Employment Opportunity Commission enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. As mentioned above, while obtaining a criminal background check is not unlawful, there can be an argument that an employer’s use of an individual’s criminal history for a hiring decision may violate Title VII. For example, the EEOC argues that an employer may violate Title VII if she or he treats criminal history differently for different people based on race, color, religion, sex, or national origin. 

The EEOC also argue that even taking into account criminal history at all may have a disparate impact on certain groups (usually by race) because those groups have a higher population of people with convictions. Based on this, the EEOC argues that an employer violates Title VII even by adopting a neutral policy of excluding applicants with specific criminal histories if it is not job-related and consistent with business necessity. While this theory has not been well-established in the courts, it can make life difficult for the employer.

The defense to the EEOC’s positions is to show that the requirements related to the criminal background check are job-related and consistent with business necessity. To evaluate this, the employer must consider three factors.

  1. What is the nature and gravity of the offense? 
  2. How long has passed since the conviction?
  3. What is the nature of the job sought?

Then the employer must do an individualized assessment about whether the conviction record is relevant to this particular job. For instance, a conviction related to embezzling money would be relevant to a job as a bookkeeper, but possibly not to a job where there is no position of trust with employer resources. A conviction related to physical abuse of a child would be relevant to working with children but perhaps not not to working in a bank.

Arrests are not convictions, and should be considered differently. First, it is important to note that the underlying conduct may not have happened at all. It is important to consider other aspects of the situation. For instance, did the person lose their job because of a complaint of child sexual abuse? In such a situation, this could make the person completely ineligible to work with children, even without a conviction.

Best Practices

When considering criminal records information for a hiring or retention decision, here are some best practices to follow:

  • Don’t adopt policies that automatically exclude all individuals with any criminal record.
  • Do create a written policy for screening job applicants and employees for criminal activity. 
  • Do adopt a policy requiring all employees to report any arrest or conviction of their own or another staff member.
  • Do educate yourself (and anyone else who is responsible for hiring) about Title VII and what an employer should or should not do.
  • Do get prior written consent from the job applicant if you wish to conduct a criminal background check for employment purposes.
  • Do ask for conviction information on the job application and note that it is not a bar to employment.
  • Do include language on the job application that notes any falsification of information on the form is grounds for not hiring or for employment termination.
  • Do consider several factors when there is a conviction,  including the nature and gravity of the criminal behavior, how much time has passed, and the nature of the job.
  • Do identify job requirements and specific criminal offenses which could demonstrate unfitness for the job.
  • Do note and keep a record of why you adopted this policy and include a record of all research and consultations held in developing this policy.
  • Don’t ask questions about criminal conduct that are not job-related and consistent with business necessity.
  • Do inform the job applicant if he or she is being disqualified based on the results of the (previously consented) criminal background check and provide a copy of the report to the job applicant.
  • Do consider hiring legal counsel if you receive reports of any arrests or convictions to make sure your response complies with all state and federal laws.

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Featured Image: "It's Me" by Ye Jinghan on Unsplash.
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