Criminal Background Checks A Dilemma For Employers

There is currently no federal law that prohibits using conviction information in the hire decision or refusing to hire someone with convictions. That may change if the EEOC has its way, but meanwhile state and local action on the issue of disqualifying employment applicants on the basis of criminal convictions has made what was historically a simple hiring practice into a legal minefield. These developments put the employer in the difficult position of having to decide between compliance and potentially increased exposure to negligent hiring or vicarious liability claims.

Companies can take steps that should allow for continued use of criminal conviction records while staying within the law. First, those involved in the hire process, including third-party service providers, need to be aware of limitations in the states where the company operates. Eliminate any bright line policy that prohibits someone with a criminal conviction from being hired. Instead, the policy should mandate individualized assessment of each candidate’s background check/conviction history. According to EEOC guidance, the employers should consider the duties and responsibilities of the specific position at issue, along with the nature and gravity of any criminal convictions found and the time elapsed since a conviction. Retain all relevant documents pertaining to the company’s process and decision-making in this area.

Additionally, do not reject candidates absent a conviction. Arrests are not proof of criminal conduct, and most jurisdictions prohibit consideration of arrests, or expunged or sealed records.