Blanket policies and Criminal History checkboxes result with more and more employers defending discrimination allegations and fighting the EEOC. Are you risking a similar fate?
In order to keep up with narrowing down a pool of applicants, it could be tempting to implement simple disqualifiers to quickly filter through applicants, such as the Criminal History check box or a policy where any misdemeanor (or higher) conviction found on the background check eliminates the applicant, right?
Policies such as these pose discriminatory practice risk, especially according to the EEOC who identifies the disparity of minority arrest and conviction frequency. Furthermore, how do you know the applicant with a conviction wouldn’t be a top candidate without meeting them first?
Staying up to date
Catching up on Ban the Box (BtB) legislation, especially if it’s in or near your area, as well as Individual Assessment EEOC recommendations is important when deciding how to incorporate these into your comprehensive background check. There is a plethora of blogs, opinion articles, EEOC guidelines, and SHRM posts, especially in the past several months discussing - and debating - these topics. Although researching these topics could both confuse and clarify, remaining well-informed can help evolve your hiring practices for the better.
How do you stay up to date with Ban the Box, Fair Chance Acts and similar legislation? Start a discussion below!
Due Diligence: Pulled in both directions
Employers are obliged to ensure the safety of their workers and the integrity of their business, which can be accomplished, in part, by conducting a comprehensive criminal background investigation. On the other hand, the EEOC and many BtB legislation advises employers to take into account additional factors when considering an applicant’s criminal past, such as arrest vs. conviction, job relatedness, the severity/nature of the offense, time and lifestyle since the incident, or rehabilitation potential.
This isn’t to say employers have to double as investigators because an applicant has a criminal record, but rather make decisions based on a reasonable amount of evidence.
Bottom line, you don’t have to hire someone you don’t think is a good fit. However, if a criminal past influences your decision, you'll be well advised to decide based on individualized assessment and the applicant as a whole.
Arrest vs. Conviction
Conviction records are easy - if the scope is legally within reporting limits of the jurisdiction, employers can use this when making employment decisions (as long as you abide by other applicable laws, such as BtB).
Arrest records are more complicated. When requesting arrest records be included in your background check, it's important to make sure you're legally allowed to use them in your employment decision. Increasingly, laws are being past that prohibit the use of arrest records for employment purposes.
Before using arrest records to make hiring decisions, it's best to consult an attorney to confirm you are permitted to do so and to aid in setting up your policy in accordance with regulatory demands as well as the legislation.
Interpreting the Results
We would love it if "how to make a decision when your candidate has a hit" was crystal clear. That being said, establishing policies based on applicable legislation, EEOC guidance and industry requirements that consider the applicant, the past, the position, the risk and the potential, should point you in the right direction.
Adverse Action Compliance
On a final note, always remember to use Pre- and Post- Adverse Action Letters whenever your decision not to hire, promote or transfer your candidate is all or partially based on the results of a background check. This is not only when the decision is related to criminal past, but anything on the report.
If you’re unsure about how to proceed with a hiring decision, get more information or discuss the circumstances with your legal department. Background screening agencies provide the information, but do not have the authority to advise you on whether or not to hire an applicant.
Choice Screening can provide you with additional information regarding reporting restrictions and can help you understand the results on your background checks. Ultimately, however, the decision to hire or not to hire remains in your hands.
Do you still have questions about background screening or criminal records?
