Job applicants are legally protected from unfair hiring decisions by federal legislation ranging from Title VII of the Civil Rights Act to the Fair Credit Reporting Act (FCRA). It’s essential for employers to know how to legally navigate instances when an applicant’s criminal background justifies denial of employment for a particular position.
In this article, we’ll highlight the circumstances in which it’s appropriate and legal to deny employment based on criminal screening results and which key factors to consider before making that decision. We’ll also explore ongoing state and federal legislative developments that may influence your screening policies.
Criminal Background or Offense That Impacts Job Responsibilities
In most cases, an applicant can be justifiably denied a position if their background screening reveals past criminal activity that could directly impact their job duties. For instance, if an applicant has a history of DUI or other driving offenses, they can fairly be disqualified from a position that involves operating a company vehicle.
On the other hand, employers should always carefully consider how the same record of criminal activity would impact qualification for a different role. In other words, a record with a driving-related offense could arguably have little bearing on an administrative position, accounting position, or an entry-level customer service position with no driving responsibilities.
Workplace Safety and Clearances
An applicant can also be fairly denied employment based on preserving the safety of existing employees and current or future clients and customers. As one example, most positions in the healthcare industry require specific clearances to ensure the ongoing health and safety of patients (including children and the elderly) and fellow staff. Other industries and organizations require security clearances that may disqualify applicants.
Individualized & Comprehensive Evaluation
Recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC) cautions employers against relying exclusively on arrest and conviction records when making hiring decisions. Some companies are excluding non-convictions from background screening results to ensure that employers and hiring managers are evaluating based on verified convictions and the applicant’s job preparedness, educational qualifications, references, etc.
In general, employers are entitled to conduct background checks that align with applicable local, state, and federal laws, as well as company policy, but they can not make hiring decisions based exclusively on arrest records or use criminal history to practice discriminatory hiring that affects protected classes under Title VII. The EEOC also encourages employers to individually evaluate the full contents of an applicant’s work history, criminal history, interview process, and other factors before making a final decision.
Evaluating Context: Considering Time Elapsed and Age of Applicant
When conducting an individualized evaluation of an employee’s criminal background, it’s helpful to consider the amount of time that has elapsed since the applicant’s conviction. This information can be weighed against the specific job responsibilities of the position, as well as the absence (or presence) of any other subsequent offenses.
The age of an applicant at the time they were convicted of a crime should also be considered, especially if a crime was committed as a juvenile or young adult. Employers should carefully consider whether an applicant still poses a genuine threat to employees, clients, or workplace safety, granting the applicant the opportunity to address the intervening time since their last conviction. Other aspects of background screening, ranging from education verification, employment verification, professional reference verification, and international background screening (when appropriate) can help to provide a more comprehensive picture of a candidate.
State and Federal Trends
Currently, “ban the box” laws that eliminate the need for applicants to address criminal history early in the job application process are effective in 24 states. A growing number of municipalities and counties are also adopting this approach. Generally speaking, this is designed to eliminate hiring bias and delay background screening until after an interview has been conducted. Instead, more private sector companies are voluntarily conducting background screenings late in the application process to ensure a more comprehensive evaluation of all of a candidate’s qualifications and history. Some private sector employers, as well as federal agencies, even delay background screening until after a conditional offer of employment has been made.
Adverse Action Process – How to Ensure Compliance
As an employer, if you decide not to hire a candidate based on the results of a background screening, you must complete a series of steps to remain compliant with FCRA requirements. This includes sending the candidate a FCRA “Summary of Rights” statement and a copy of the report you received from your background screening provider. Any candidate is entitled under FCRA regulations to offer remarks or additional information about any negative findings on the background screening report.
Assuming your decision is unaffected by the candidate’s remarks or additional information, you must notify the candidate (verbally, by email, or by mail) that their application has ultimately been denied based on the results of the background screening report. You are obligated to provide the candidate with the contact information of the report provider and guidelines regarding disputing the findings of the report.
Comprehensive Background Screening – Hire Confidently with The Orsus Group
Weighing the results of an applicant’s criminal background screening against other employment- and education-based factors can be a complicated and time-consuming process. That’s why the Orsus Group offers comprehensive background screening services to grant you a full picture of a candidate’s background and qualifications. From county, state, and federal criminal inquiries to database, registry, and excluded parties list searches, we help you manage risk exposure while making intelligent and informed hiring decisions that secure top talent for your organization.
Ready to conduct background screenings and applicant evaluations with confidence? Contact us today to let us know how we can support your hiring process.