The use of pre-employment background checks has become commonplace and many companies choose to include these screenings as part of their overall hiring process. For some industries, background checks are not a choice but a necessity because they are required by state or federal law. As a result, employers must be well-versed in the use of background checks to avoid any legal minefields.
Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act (FCRA) provide some protections for applicants with criminal records. Title VII prohibits discrimination in employment and the FCRA addresses the accuracy of these records. Employers need to be aware of their obligations under both of these laws as they relate to pre-employment criminal background checks.
Considerations for employers
Title VII prohibits discrimination in all aspects of employment, including pre-employment screening practices and hiring. Because arrest and incarceration rates are historically higher for individuals in certain protected categories, an employer that adopts a blanket policy of excluding all applicants with any criminal record could face discrimination charges. Additionally, employers can only consider convictions in the pre-employment process; arrests cannot be considered.
The EEOC advises employers to use an “individualized assessment” when assessing criminal background records. When evaluating criminal history records, the EEOC guidance recommends an employer should consider the following factors:
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The nature and gravity of the offense or conduct
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The time that has elapsed since the offense and completion of any sentence or probation
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The nature of the job at issue.
The EEOC suggests that an employer should be able to demonstrate the relatedness of the job and the conviction should an employer choose to deny employment based on an applicant’s criminal record.
The FCRA provides notification requirements that must be followed should an employer decide to reject an applicant on the basis of his/her criminal background report. Before an employer takes adverse action (e.g., not hiring an applicant or firing an employee) based on information obtained through a criminal background report, the employer must provide a pre-adverse action notice (containing specific information) to the applicant. By giving the applicant the notice in advance, the applicant has the opportunity to review the report and explain any negative information.
After a reasonable amount of time for the applicant to dispute any negative information on the background report, when the employer takes the adverse employment action, the employer must notify the applicant or employee of the following:
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That he/she was rejected because of information in the report
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The name, address, and phone number of the company who provided the report
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That the company providing the report didn’t make the hiring decision, and cannot give specific reasons for it
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That the applicant has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.
Employers must also be aware of “Ban the Box” laws that have been enacted in 17 states and more than 100 cities and counties across the country. These laws place additional limitations on when employers may inquire about an applicant’s criminal history. Asking applicants whether they have ever been convicted of a crime, a common question on employment applications, may run afoul of these laws.
Navigating the pre-employment screening process can be frustrating and risky for employers. Engage regularly encourages clients to reach out to their Engage HR Manager to ensure that their pre-employment screening practices are compliant with state and federal laws.