A criminal record background check can reveal much information about an applicant. Employers must understand how they can legally use this information in hiring decisions.
Employers must comply with federal, state, and local laws when conducting a criminal background check for employment. These include EEOC guidelines and ban-the-box laws.
Laws that Prevent Discrimination
For many people with criminal records, finding gainful employment can be difficult. While employers can refuse to hire anyone with a criminal record, they can’t discriminate based on race, national origin, sex, age, or religion. Discrimination is prohibited under federal and state law. If a person is denied a job because of their background check criminal record, they may file a lawsuit against the employer.
Many states and cities have passed “ban-the-box” laws, which require employers to wait until later in the hiring process to ask about an applicant’s criminal history. These laws help to prevent discrimination because a yes or no answer to questions about past convictions cannot accurately predict whether a person will be a good employee. Moreover, a blanket policy that excludes applicants with a criminal record disproportionately affects racial groups since arrest and incarceration rates are higher for African Americans and Latinos.
Laws that Allow Discrimination
When employers conduct a criminal background check, they can uncover arrest and conviction information that is relevant to the position and may disqualify candidates. However, employers and CRAs must follow laws that prevent discrimination based on race, age, religion, gender, sexual orientation, and national origin when they use this information in their hiring decisions.
The Equal Employment Opportunity Commission (EEOC) prohibits discrimination based on protected classes regarding hiring, firing, or promotion decisions in private, state and local government, and federal workplaces. These include race, ethnicity, sex, national origin, religion, family status, and disability. It also bars the use of genetic information and medical histories in these hiring decisions.
Employers can be held liable for negligent hiring lawsuits if they hire someone whose criminal history would have made them a liability or for not completing a background check that would have prevented an injury to a customer or patient. That’s why many companies must complete background checks by law, especially those in regulated industries, such as financial services, insurance, health care, and real estate. Employers in these sectors must conduct a criminal record background check only after extending a conditional job offer. They must also get the applicant’s permission before conducting the check and make an individualized assessment of the applicant’s criminal record to determine if it is related to the specific job duties.
Laws that Require Employers to Get Permission
Some states have “ban the box” laws that require employers to wait until after a job offer has been made before asking about an applicant’s criminal record. In these cases, the employer can only consider an applicant’s criminal history if it is required by law for the job or if the information is relevant to the position’s duties.
A background check can reveal a lot of different kinds of information, including legal infractions that only resulted in citations, arrest records, incarceration records, and convictions for misdemeanor or felony crimes. Some positions may require a more detailed search, such as for jobs with access to client financials or sensitive data or positions that work with children or vulnerable adults. Other searches might include sex offender databases for positions that deal with at-risk individuals and county, state, or federal convictions.
Employers should get permission from applicants to conduct a background check before beginning the process. In addition, they should be careful not to discriminate against a candidate for any reason when using the results of a background check. For example, if the results show that one candidate is more likely to be involved in certain crimes than another (such as theft or fraud), this could be considered discrimination under Title VII. In addition, employers should avoid asking for medical or genetic information about an applicant, as these are protected under the Genetic Information Nondiscrimination Act and the Fair Credit Reporting Act.
Laws that Require Employers to Disclose the Purpose of the Background Check
If an employer asks about your criminal record on a job application, you must agree to the background check. The FCRA requires employers to get written consent and disclose the purpose of the check before conducting it. If you’re not hired because of a criminal record, the employer must provide you with a copy of the report and the reason why.
Most state laws have similar rules regarding a job applicant’s record. Some states restrict how long convictions or arrests appear in a background check; for example, California prohibits consumer reporting agencies from including non-conviction data over seven years old. Some states also require employers to analyze each candidate’s criminal history case-by-case basis.
Employers should understand that people with records of misdemeanor and felony offenses can contribute to the success of businesses. Instead of turning them away, companies should embrace fair chance hiring policies.
