February 6th, 2018 | Debbie Lamb, Sterling Talent Solutions
Criminal Record Checks 101
What is the first thing that you think of when you hear the word, background check? When I started at Sterling, it was the first time that I had to complete a background screen before I could be officially hired. I wasn’t sure of the process or how long it would take and would it delay me getting hired for the job. I found that a background check is not as simple as one would think. Many parts go into a background check from conducting a criminal record check to verifying my past employment and education. All the components of an employment background check help organizations get a better overall picture of their candidates to give them the insight they need to make an informed hiring decision.
Why Should You Conduct Background Checks?
Background screening is important because it protects a company’s property, assets, reputation, brand and ultimately its biggest asset, the people. The Sterling’ 2016 Background Screening Trends and Best Practices Report found that 40% of the survey respondents still do not conduct background screening. For those that do screen, the number one reason for conducting background screening checks is improving or meeting regulatory compliance (67%) followed by improving the quality of hires (59%), company reputation (53%) and enhanced workplace safety and security (50%).
Each organization is unique and requires unique solutions for the hiring process to allow companies to hire with confidence. There are many types of background screening checks from criminal record checks to education and employment verifications to social media screening. Each type of check has specific practical considerations and compliance matters that must be followed.
What is a Criminal Record Check?
The Background Screening Trends Report found that 93% of the respondents conduct criminal record checks to evaluate their prospective employees. Criminal record checks remains 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.
While criminal record searches are the most utilized background screening checks, there are concerns that companies need to take into consideration when making hiring decisions based on the results of these checks. 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 regulate the timing for employers to inquire about a candidate’s prior criminal convictions until later in the hiring process. They prevent companies from asking about a job candidate’s criminal history on an application and in some cases during the hiring process. Ban the box laws are also called “Fair Chance” or “Fair Opportunity” laws. There are a variety of these laws across the country that can apply to public, private or both types of organizations.
Types of Criminal Record Checks
In the US alone, there are more than 3,500 individual court jurisdictions and each one handles their records a little differently. Sterling leverages a multi-step process to identify places to search for criminal records for each candidate. Criminal record searches are then powered by our proprietary CourtDirect technology providing instant automated access to the criminal records located in county court jurisdictions. CourtDirect uses high-speed connections into more than 2,200 jurisdictions across the U.S. allowing us to search over 75% of all criminal records in minutes.
There are many sources for companies to receive a complete picture of a candidate’s criminal history:
- County Criminal Records: County criminal records search is usually where a criminal history search begins. The checks, based off an SSN trace to better identify candidate address and jurisdictions, include felony and misdemeanor criminal records, the current status and/or final outcome of each case and FCRA compliance, with details reported responsibly per federal guidelines.
- State Criminal Records: We search local index and centralized state repository searches in Puerto Rico and 46 states. While every state possesses a state repository, due to differing state legislation, some repositories are incomplete or offer limited access.
- Federal Criminal Records: A federal criminal records search is often a supplement to county and state criminal records checks and is commonly used for employment background checks for senior and executive-level positions.
- Sex Offender Registry: A sex offender check is conducted via the US Department of Justice Sex Offender Registry, which includes real-time listings of registered sex offenders in 49 states, offering complete and current reporting of any convictions and/or infractions.
Criminal Convictions and Disqualifications
Before conducting any background check, it is the employer’s responsibility under the FCRA to provide the candidate with the appropriate written disclosure and authorization without any extraneous information. It is recommended that employers have their legal counsel review these documents periodically to ensure compliance.
The EEOC urges HR professionals and hiring managers to evaluate a number of factors before making a hiring determination based on criminal history, including the nature of the offense, the severity of the offense, the time that has passed since the offense, 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 ensuring adherence to applicable laws to avoid discrimination.
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 for 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.
Criminal record checks are a vital step in making intelligent and informed hiring decisions. The key to minimizing the legal risk associated with criminal record checks is having a well-thought-out hiring policy in place that accounts for applicable legislation, guidance from the Equal Employment Opportunity Commission (EEOC), and the overall candidate experience. Sterling is here to help with your background screening and new hire onboarding needs. Check out the compliance page on our website for the latest decisions that affect the employment background screening industry. Plus, Sterling conducts quarterly FCRA Compliance webinars to keep attendees current on the latest FCRA compliance updates. Sign up for these very informative webinars today! Contact us for more information about how our criminal record checks will simplify the process and give you hiring peace of mind.
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.