December 2nd, 2022 | Sterling

Best Practices When Considering Candidates with Criminal Records

From today’s top news stories to the current jobs landscape, background checks are 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 PBSA and HR.com’s 2021 industry survey report, Background Screening: Trends in the U.S. and Abroad, 93% of organizations around the world report conducting some type of background screening.

Application, interview, and criminal background screening processes vary at every company. While each business is unique in its needs, technologies, and workflows, having a documented process and policy in place to make decisions about criminal record disqualifications will help you to remain consistent, fair, and compliant in your evaluation of prospective employees.

Best Practices When Considering Candidates With a Criminal Record

Sometimes the background check does not reveal any disqualifying information, and you can move forward with your candidate. But what happens if you learn that your candidate had a criminal record? What do you need to do now?

The hiring process is subject to a wide array of regulations, so employers must follow specific steps to be compliant with state, local, and federal laws. Generally (again, with some exceptions) 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. However, as a general matter, disqualification decisions should be made after review and notice, and based on individualized analysis of job-related issues raised by the report. Since each individual is unique, every situation should be carefully considered.

There are four factors which an employer must consider after a background check has revealed an unexpected 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. Note that some ban-the-box laws create additional requirements for employers, so you need to be aware of any specific state or local requirements (beyond just the FCRA requirements) before acting on a criminal record.
2. Fair Chance: Many jurisdictions have put in place fair chance laws that require the evaluation of many different 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 could possibly relate to the job. Employers should have a process in place to be fair to all candidates and which follows all applicable laws in order 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. These 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 well-informed hiring decision. However, just because a candidate has a conviction, doesn’t mean they should be automatically disqualified from the job. It’s up to each company to form policies best suited to them and to the role’s functions, and to ensure these policies are documented.

Learn best practices for asking about criminal convictions and steps to take before deciding whether to disqualify candidates based on criminal records in the infographic 4 Best Practices When Considering a Candidate with Criminal Records.

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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.