Hiring Policy Regulation and Risk Regarding Arrest and Conviction

Staying current with EEOC regulations is important for avoiding Title VII liability, while ensuring that your company is as secure as possible with the person you finally hire. This can be especially true when it comes to the issue of persons with arrests or convictions.

What can you ask, and what things must you avoid? What are the legal aspects of background checks and reports from third-party providers?

There is no federal law that prevents an employer from asking a candidate about instances of arrest or conviction. Care must be taken, however. An applicant’s admission that he or she has been arrested should not lead you, as an employer, to assume that the applicant actually committed a crime. Also, it should not be the sole determining factor in rejecting an applicant.

As mentioned above, there are two areas of risk for employers:

  • When hiring employees with criminal records, employers can be at risk of negligent hiring if they do not adequately investigate aspects of a candidate’s background that relate to the job for which the applicant is applying.
  • Excluding applicants who have criminal records may constitute employment discrimination under Title VII of the Civil Rights Act.

There are laws in certain states that limit the use of arrest and conviction records as employment criteria. You should be aware of your local regulations. Some states also have protections for the applicant, which limit what they must report.

Key to creating a policy in this regard is the 1977 finding by the 8th Circuit Court in the case of Green v. Missouri Pacific Railroad. In its ruling, the court identified three factors, referred to as the “Green” factors, that must be kept in mind when considering an applicant’s arrest and conviction history. Those factors are:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense, conduct and/or completion of the sentence; and
  • The nature of the job held or sought.

These three factors are the starting point for analyzing how specific criminal conduct can be linked to specific positions. Based on the Green factors, here are a few suggestions to help you develop a hiring policy or to assess and improve the policy you have:

  • Avoid “blanket exclusion” policies that will exclude people from employment based only on certain criteria.
  • Regularly assess and update hiring policies to avoid any hiring practice that would exclude or have negative impact on a protected group.
  • Be cautious about excluding candidates based on their criminal record unless it is directly and specifically related to the type of job being offered.
  • Give all applicants a chance to explain the circumstances of their criminal record.
  • State clearly on the application that you will seek a background check if the job being applied for so necessitates.

That final point can make a big difference to both you and the candidate. As previously stated, the candidate may have been found completely innocent—some even after having served prison terms. Some things to consider are:

  • The facts or circumstances of the arrest or the conduct,
  • The number of offenses the applicant has been charged with or convicted of,
  • The time elapsed since the convictions
  • What effort the applicant put into rehabilitation
  • Length, quality and consistency of the applicant’s employment history prior to and since the conviction
  • References should be reviewed and properly vetted.

When it comes to background screenings, the options and legalities are constantly evolving. The Fair Credit and Reporting Act grants specific right to consumers about how and when their information can be accessed, how it can be used and how they are protected.

If a background report causes you to take an adverse action against a candidate, you must inform the candidate in writing. This can be in the form of an adverse action letter, as an indication that you have already decided not to hire based on what the report uncovered. It can also be a “Pre-adverse Action” letter. That is, the letter can inform the candidate prior to your actually requesting the background check.

Either way, your letter should remind the candidate of the permission you were given by them to seek the information in the first place. It should also be emphasized that information specific to that report, if accurate, has caused you not to offer them employment. Along with the letter you need to provide a Summary of Rights for the candidate. You need also to include a copy of the report showing the adverse findings, along with the name, address and phone number of the agency that provided the information.

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