The use of a criminal background check during a hiring process has many people confused about what they (the employer) can legally do and what they can legally use.
Can they “overlook” you because of negative information that was found via a Google search? Do they have to tell you up front that they are performing a background check? Can they use the information off a background check to keep you from getting a job? What are the legal rights of the applicant and when does that person have an argument?
At bestbackgroundchecks.com, much of the material we write about dances around the topic of what is quite literally “legal” in terms of using material found via any medium that is used to make a management decision regarding an individual who has been subject to a consumer report (background check, screen, etc).
Luckily, there is a group the United States, the Equal Opportunity Opportunities Commission, or EOOC, that is tasked with identifying and spelling out the information (very specifically) as to what is legal and what is not when using a criminal background check in the hiring process.
On April 25th 2012, the EOOC updated their official position on the use of criminal background checks when hiring new employees. Their new guidance was done “to consolidate and update the U.S. Equal Employment Opportunity Commission’s guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.”
Ok, so what does this mean?
Well, the big problem that they (the EOOC) are trying to combat is how the use of Background Checks can have a negative impact on “protected classes,” or people of a specific race, color, gender, age, national origin, religion, familial status, disability, veteran status, and genetic information.
You’ve heard a company describe itself as an Equal Opportunity Employer? This is in direct correlation to the EOOC’s goal—to keep prejudice out of the work place, starting at the hiring process.
Breaking Down the EEOC’s Guidance
This update in information from the EEOC recommends that employers take into consideration three factors before rejecting an applicant for a job based on the results from a Consumer Report (criminal background check).
1) The nature and gravity of the offense or conduct
Was the offense shoplifting or another petty crime that bares little relation to the position being applied for? Or was it something that warrants identification—domestic abuse, fraud, DUI’s? What the EOOC guidelines are saying is to take into account just how bad the action was and if that would be something which would hinder the future of the applicant in their employment with you. A ticket for expired license tabs will certainly be documented, the question is whether it makes the candidate a bad sales representative. The choice is yours.
2) The time that has passed since the offense or conduct and/or completion of the sentence
Did that crime/offense occur in the applicants early youth with a clean record since? Were there consecutive offenses? The length of time that occurred between the offenses (or since offenses) should be taken into consideration. It is not unusual for applicants to have a bad track record in the past, but a clear recovery since. On the other hand, someone with consecutive problems or current problems merits further attention and legit reasoning.
3) The nature of the job held or sought
Higher level positions require more responsibility. Lower level positions might not. Take into account what the person is applying for and just how connected /egregious the offense committed. There is no question that supervisory level positions should be held by people with outstanding backgrounds, clean of corruption and corporate dishonesty; two outstanding speeding tickets might not fall into the same category in significance for that job, but it sure as hell might for a pizza delivery driver.
To further cover your butts…
The EOOC goes even further to point out MORE that should be done to the candidates that are removed after following the above guidance to be sure a strict policy was applied and is consistent with the business’ practice.
1) Forewarn all applicants that they may be excluded due to past criminal activity.
A straight up release form will do the trick. In the event it doesn’t scare off the wrong employees, if they do apply and are turned down, they will have known what they were getting into and hopefully signed a document proving it.
2) The employer should provide an opportunity to the individual to demonstrate that the exclusion does not properly apply to him/her.
There can be circumstances where someone’s background might not be entirely retrievable. Whether this is because of records being lost in immigration or held up in top secret files… the applicant has the right to explain why rule number 1 shouldn’t apply to him or her. There is always an exception to the rule.
3) The employer should consider whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.
Does the applicant have just cause for withholding information or remaining consistent with specific information? Is the employer using this information that is consistent with their regular practice? Do you REQUIRE a credit check for your financial officer?
The report concludes with its definition of “Best practices” in the employee screening process.
- Get rid of policies that exclude people because of criminal record (that doesn’t mean that it shouldn’t be a factor—this means an interview is equally granted for the guy applying from the halfway house).
- Educate management, hiring officials, and important decision makers to Title VII. (The Civil Rights Act of 1964 included Title VII which “Prohibits employment discrimination based on race, color, religion, sex and national origin.”)
- Prepare a “narrowly tailored” written policy for the use of Criminal Background Checks and all company policy including:
- Job requirements (If you are under 16, the State bans you from using the skate sharpener… this job requires the use of a skate sharpener)
- Specific offenses that would deem inflexible with expected job performance (Absolutely no DUI’s to drive a truck)
- In detail describe the duration of exclusions (If you have not had problem A for X number of years…)
- Record all justification for policy and procedure (You need to show up by this time because you are driving a bus with a specific timetable)
- Note who was consulted, why, and what makes them proper consultants (Austin Powers was consulted in use of Mojo as he is the principle head of his field).
- Train management as to how to implement all policy and procedure (This seems pretty straight forward; transparency is the goal).
So there you have it, some insight as to the actual legality of using Criminal Background Reports in the hiring process. The biggest factor that is expressed is keeping record of everything with a proper paper trail of signed documents that explicitly express how information will be gathered, assimilated, and synthesized.
And maybe a hidden theme concealed within the dry exposition of this update is that everyone should get a second chance and the ability to prove how they have changed. The EOOC might not say it as plainly, but through the verbiage and rhetoric used in this “Guidance,” it’s stating that a person’s history can be a tool to uncovering their future; it can be a double edged tool to be used against him/her. Be sure to be using the tool for the right reasons.