Employers today face a wide variety of concerns when hiring new employees. Can the business afford the costs associated with additional personnel? What job functions must the new employee satisfy? What skillsets are required? How is the newly hired individual going to interact with its customers and, just as importantly, its other employees?
More and more often, employers are turning to pre-employment criminal background checks as a means of answering or managing the perceived risk associated with at least some of these questions. Seem reasonable? Perhaps, but such checks can also open the door to even greater problems and potential liability.
Today, some surveys and studies estimate that approximately 28% of American adults have a criminal record of some sort. Hence, employers who automatically disqualify individuals with a criminal conviction are more likely to miss out on potentially valuable employees.
In addition, since traditionally African Americans and Hispanics have higher rates of conviction, such checks may run afoul of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on, among other grounds, the basis of race and national origin. As a result, employment related criminal background checks, including those conducted for existing employees, may invite claims filed with the Equal Employment Opportunity Commission (“EEOC”) and, worse, result in time consuming and expensive litigation. In order to avoid such risk and expense, the EEOC has issued guidelines to employers, which can be used to shape and craft policies and procedures through which the employer’s need to scrutinize the criminal background of potential or existing employees can be weighed against the potential disparate impact created by blanket checks and prohibition policies.
Under these guidelines, employers should first eliminate any previous policy which would automatically exclude persons from employment based upon any criminal arrest or conviction. Second, employers should work with an attorney knowledgeable in employment law to develop narrow policies and procedures that screen applicants or existing employees for criminal conduct in manners least likely to result in a discriminatory practice while adequately protecting the employer’s legitimate business interests and goals. In drafting or creating such policies, employers should carefully consider and identify those positions it believes a criminal background check is essential for and why. Employers must consider what specific offenses, including the nature and gravity of such offenses and the length of time since the offense and the completion of any sentence, would demonstrate that an individual is unfit for their particular position.
Finally, for those individuals who are negatively impacted by the policy, the employer should consider, prior to a final disqualification: the facts or circumstances surrounding the offense; the number of offenses for which the individual was convicted; the age of the individual at the time of conviction; evidence that the individual has performed the same type of work as that for the position at issue since his or her conviction with no known incidents of criminal conduct; the length and consistence of the individual’s employment history both prior to and after the conviction; the rehabilitation efforts of the individual; employment or character references; and whether the individual is bonded under a federal, state or local bonding program.
By thoroughly and judiciously undertaking such considerations, employers are most likely to gain and retain valuable employees and minimize any risk to themselves of unwanted expense and potential liability.