September 21st, 2017 | Debbie Lamb, Sterling Talent Solutions

Your Candidate Has A Criminal Record: Now What? [Infographic]

Sterling recently surveyed 500+ US-based employers in 33 industries about their background screening use to gain key insights into emerging trends, technology and more. The 2017 Background Screening Trends & Best Practices Report uncovered details about how HR professionals think about the components of the hiring process and how they relate to the background screening industry, how emerging technology is impacting the candidate experience and what they consider to be trends in employment background screening.

Companies Conduct Criminal Record Checks the Most

The Background Screening Trends Report found that overall, employers are finding employment background checks worth their time. 80% of survey respondents said background checks uncover issues/information that wouldn’t have been found otherwise.

93% of the respondents conduct criminal record checks to evaluate their prospective employees. Criminal record checks remain an important part of the background check policy, but it is interesting to note that 86% of survey responders said fewer than 20% of candidates whose background checks reveal criminal convictions are disqualified from employment because of these convictions. We created the infographic, “Your Candidate Has a Criminal Record: Now What?” to share tips for asking about criminal convictions and disqualifying candidates based on the findings in a criminal records check.

Asking About Criminal Convictions

While criminal record searches are the most utilized background screening checks, there are concerns that companies need to take under consideration when making hiring decisions based on the results of these checks. Based on our survey, over 48% of employers ask about criminal convictions on the application while 28% do not ask candidates about prior criminal history at all. It is crucial to remember that before asking a candidate if they have been convicted of a crime,  companies have to be aware of their city, county and state Ban-the-Box laws.  These laws determine if companies are allowed to ask questions related to a candidate’s criminal history on the initial application.

Criminal Convictions and Disqualification

HR professionals and hiring managers must evaluate a number of factors before making a hiring determination, such as the type of crime, the severity, how long ago it occurred and how that conviction relates to the job. Employers must have a process in place to remain consistent and fair to all candidates as well as following all laws (FCRA and EEOC mandates and regulations) to avoid discrimination.

Candidate Convictions and Individualized Assessments

In order to comply with EEOC guidance, employers are encouraged to develop an individualized assessment process which evaluates the important factors surrounding a conviction including the type/severity of a crime, how long ago it occurred, whether the person is a repeat offender, etc., and to allow a candidate to provide mitigating factors for why that record should not be considered. The Background Screening Trends and Best Practices Report found that 57% of companies perform an individualized assessment while 18% of companies do not and surprisingly, 25% of companies are not sure if they perform these assessments or not.

Making the Decision Not to Hire

If a business makes the decision not to hire a candidate based on their background screening report, they are required by law to initiate the two-step adverse action process. Neglecting this process will expose organizations to lengthy and costly legal action. Companies must always give the candidate adequate time to respond and dispute the decision as well as wait a reasonable amount of time (at least five days) between notices, or longer if needed.

Background screening is an essential part of making a quality hiring decision. But just because a candidate has a conviction doesn’t mean they should be disqualified from the job. Having a documented process and policy in place to make decisions about criminal record disqualifications will help organizations remain consistent, fair and compliant as they evaluate prospective employees. Learn tips for asking about criminal convictions and disqualifying candidates based on criminal records in the infographic, “Your Candidate Has a Criminal Record: Now What?”

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.