Employers can ask about criminal backgrounds during the interview process. In order to best ensure the proper use of any information received, many employers have the questions written out and ask them exactly as written. Employers could also present a brief questionnaire to the applicant and ask for a written response. This would be similar to the questions often asked on an employment application, but not requested and reviewed until the time of the interview process.
1 Now that I have removed any question about criminal backgrounds from the application, when can I ask about it?
2 What questions can I ask?
Questions should pertain to criminal history that involves convictions, pleas (no contest or nolo contendere), or adjudications withheld. Employers should ask about the types of crimes and when the convictions occurred.
3 What questions should I avoid?
In most cases, employers should refrain from asking about arrest records. In addition, employers should not take into consideration any criminal background history that is not job related or a business necessity. For example, a conviction for a DUI would have no bearing on a position that does not involving driving for business purposes such as a call center employee.
4 How can I use the information I learn?
Information received from an employee or through a criminal background check can only be used if there is a job related or business necessity purpose for excluding the applicant or employee from holding the position. In addition, the applicant’s individual circumstances and the amount of time since the conviction or end of the sentence should be taken into consideration.
5 How is the EEOC involved in the background check process?
The EEOC has a long history of applying Title VII of the Civil Rights Act of 1964 to the consideration of arrest and conviction records in employment decisions. In 2012, the EEOC issued guidance that applies to applicants as well as employees. There are two ways that the use of criminal history information could violate Title VII.
Disparate Treatment: Employers may not treat applicants or employees with similar criminal histories differently because of their race, color, religion, sex or national origin.
Disparate Impact: Employers may not exclude applicants or employees where the result unjustifiably excludes people of a protected class. The employer is required to show that an exclusion is “job related and a business necessity.” For example, excluding all applicants who have been arrested may impact one race more than another without any regard to the result of the arrests.
6 What other laws do I need to be concerned about when conducting background checks?
The Fair Credit Reporting Act (FCRA) requires employers who use consumer reports from a consumer reporting agency (background checks from another firm) to follow certain regulations including among other items: 1) obtaining written consent to a criminal background check, 2) developing proper handling and disposal procedures of consumer reports, and 3) following appropriate notification requirements prior to taking any adverse action against an applicant or employee based on the information obtained in the report.
7 Why should I ask about the criminal background of an applicant?
A claim for negligent hiring can occur when an employer hires an individual that the employer knew, or should have known, that the individual’s background or criminal history was dangerous or untrustworthy, and resulted in harm to another employee, customer or the public. Background checks can reveal an applicant’s past actions that could put the company at risk.
8 So my candidate has a criminal background that falls under my specific, business related exclusions, what do I do now?
It is best to conduct an individualized assessment before taking any adverse action. Start by informing the individual that they may be not be hired because of past criminal conduct and provide them with an opportunity to explain why the exclusion should not apply to them. Then look at the business necessity for the exclusion, the explanation of the criminal history from the applicant and any additional relevant information to determine if the exclusion should apply or be waived for this individual. By conducting an individualized assessment, the employer can demonstrate there is no blanket exclusion for applicants with a criminal background.
9 What should I do to ensure I am fully complying with the laws?
- First, ask all applicants for the same position the same questions about any criminal background and document their responses. Do not only ask applicants of one race or national origin, but rather be consistent with everyone similarly situated.
- Second, develop criteria that is business related and is 1) based on the gravity and nature of the offense, 2) the amount of time that has passed since the conviction or completion of the sentence, and 3) the nature of the position in the company.
- If a conviction appears on the applicant’s background, make an individualized assessment before taking any adverse action.
- Follow the FCRA procedures for taking adverse action and handling the report.
10 How do I learn more?
Please contact Julie Hindall, Workforce Development Manager at 904-366-6615 or firstname.lastname@example.org.