July 11th, 2018 | Patty Hanley, Sterling Talent Solutions

Best Practices When Considering Candidates with Criminal Records

From today’s top news stories to changing jobs, background checks are becoming a central part of the hiring process. At a time when the demand for more information about candidates continues to rise, employers are finding strong value in the content of the background screening results they receive. According to the Sterling’ 2017 Background Screening Trends & Best Practices Report, 89% of companies currently conduct employment background checks and 80% of those respondents stated that background checks uncover issues/information that wouldn’t have been found otherwise.

How Do Employers Conduct the Background Screening Process?

The application, interview and background screening process vary at every company. Some organizations go out of their way to make it simple and transparent for the candidate, while other companies have complex processes in place, which can make the entire process unclear and challenging for the candidate. Our report found that 69% of the respondents explain their background screening program and what information they are looking for in their candidates.

Just because your candidate has a conviction doesn’t mean they should be automatically disqualified from the job. In fact, 67% of employers from our report would proceed with the candidate evaluation path even if the candidate didn’t divulge a past conviction. Having a documented process and policy in place to make decisions about criminal record disqualifications will help you remain consistent, fair and compliant in your evaluation of prospective employees.

Best Practices When Considering Candidates with a Criminal Record

If the background report does not reveal any disqualifying information, there are no additional obligations, with the exceptions that individuals in California, Massachusetts, Minnesota, New Jersey and Oklahoma who requested a copy of the report are provided with a copy of their report. But what happens if you found out that your candidate had a criminal record? What do you need to do now?

The background screening industry is highly regulated and employers must follow specific steps to be compliant with state, local and federal laws.  Generally, an employer can disqualify an applicant based on information in the background check report even if the information was not requested on the employment application or during the job interview. As a general matter, all disqualification decisions should be based on individualized analysis of job-related issues raised by the report.

There are four factors that an employer must consider after a background check has shown an unknown criminal record that could impact their hiring decision:

  1. Ban the Box Laws: Ban the box laws refer to the box on an employment application asking whether or not the candidate has been convicted of a crime. Many states and municipalities are continuing to enact these laws to provide equal opportunity and fairness to candidates.
  2. Fair Chance: Employers must evaluate many factors before making a hiring determination, such as the type of crime, the severity, how long ago it occurred, how old the individual was at the time the crime was committed and how that conviction relates to the job. Make sure to have a process in place to be fair to all candidates and as always, make sure you’re following all laws to avoid discrimination.
  3. Individualized Assessment: To comply with the 2012 Equal Employment Opportunity Commission (EEOC) Enforcement 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.
  4. Adverse Action: Companies must follow a Fair Credit Reporting Act (FCRA) mandated two-step adverse action process before they take action based on the findings in a consumer report. The two steps consist of a pre-adverse notice, sent prior to making a final decision, followed by a notification of adverse action, sent after a final decision is made not to hire.

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 best practices for asking about criminal convictions and disqualifying candidates based on criminal records in the infographic 4 Best Practices When Considering a Candidate with Criminal Records.

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.