Hiring Tools and Information

USE CAUTION WHEN CHECKING CRIMINAL RECORDS

Many employers view an applicant's criminal record as a valuable piece of information. There are lots of assumptions that employers make about an individual based on their criminal history, including assessments of trustworthiness, honest and integrity.

However, there are also legal concerns surrounding criminal background checks. The law essentially divides criminal background checks into two categories: arrest record inquiries and criminal conviction inquiries.

Arrest record inquiries pose a significant liability risk for employers. Certain minority groups are arrested in numbers disproportionate to their representation in the general population. Thus, an employer's policy of disqualifying job applicants simply because of an arrest record, without regard to convictions, may disproportionately impact the employment opportunities of these minorities.

Further, both the Equal Employment Opportunity Commission (EEOC) and courts have held that because such an inquiry can have a chilling effect on minority job applicants and cannot be justified by the business necessity test, simply asking about arrests is unlawful. Basically, an employer should not:

Ask applicants, either on application forms or at job interviews, whether they have ever been arrested.
Record any unsolicited arrest record information volunteered by the applicant (often provided in response to a lawful conviction record inquiry)
Unlike arrest record inquiries, an employer may generally ask applicants to disclose whether they have been convicted, as well as arrested. The record of convictions may bear on a hiring decision, but cannot be used as an absolute basis for rejection without looking at the specific crime charged and relating it to the job.

Rather, employers must evaluate each conviction and determine whether or not it is job-related. Relevant consideration s include:

• The time, nature and number of convictions
• The facts surrounding each offense
• How the conviction affects the duties of the job
• The length of time between a conviction and the employment decision
• The applicant's employment history before and after the conviction
• The applicant's efforts at rehabilitation