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Staffing Management: Walking the Criminal Records Tightrope

N. Alexander Erlam   10/1/2005
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Vol. 1, No. 3

Employers must balance state and federal regulations when using background reports.

Most HR professionals cringe when a background report on an applicant or employee is returned to them and it shows that the individual has a criminal record because they know they must now walk the proverbial legal tightrope in reviewing the report and making a hiring decision. On the one hand, HR is charged with protecting the organization by using the background report effectively to weed out potentially dangerous employees. On the other hand, HR must help shield the organization from liability by maintaining compliance with a host of federal and state legal requirements that restrict how employers can use background report information to make hiring decisions.
Within the complex web of regulations that limit employers use of background check information, federal and state requirements may contradict each other. A federal law may allow the use of certain information, while a state law bars it altogether. Compounding the issue are federal and state laws that set allowances and restrictions for what third-party screening providers, known as consumer reporting agencies (CRAs), can include in a background report prepared for an employer. Conflicts may arise in which certain background report information is legally reportable by a CRA, but not legally usable by the employer.

Criminal record checks, in particular, can present thorny issues because of the many intersecting (and diverging) layers of legal regulation surrounding the reporting and use of conviction and non-conviction/arrest information. However, HR practitioners can still screen effectively if they identify potential conflicts in regulations that apply to their organization, isolate the regulations that will make the final determination for use of criminal record information and focus compliance efforts accordingly.

Conviction Records

When it comes to using conviction information in a hiring decision, federal regulations provide employers with reasonably clear direction. If a background report shows the subject was found guilty or convicted of a charge, he or she cannot automatically be eliminated from consideration for employment.

Though its not uncommon to hear of felony-free workplace policies, under the Equal Employment Opportunity Commissions (EEOC) guidance on arrest and conviction records, this type of blanket policy is illegal. However, conviction information can be used if certain conditions are met. The EEOC does permit employers to use convictions on the basis of business necessitywhich can be justified if the conduct that led to the conviction is particularly egregious or related to the position in question. Employers can establish business necessity through examination of the following factors:

  • The nature and gravity of the offense.
  • The time that has passed since the conviction and/or completion of the sentence.
  • The nature of the job held or sought.
  • If examination of these factors reveals the applicant to be unsuitable for employment, the EEOC states that the conviction record can be cause for rejection. This position also has been adopted by numerous federal courts.

At the state level, direction on employers use of conviction records can come through widely varying guidelines or laws. Examples of these include a Florida law that prohibits publicsector employers from disqualifying an applicant solely because of a prior conviction, a Hawaii statute that prohibits private employers from refusing to hire an individual based on a court record and Washington State Human Rights Commission regulations that prohibit discrimination against any individual because of a prior criminal conviction.

From the perspective of the CRA, the federal Fair Credit Reporting Act (FCRA) allows conviction records that go back an unlimited number of years to be included in the background report. By contrast, a number of state laws limit the reporting and/or use of conviction information to the past seven years. Variations set limits based on the type of criminal conviction, the date of state law enactment vs. federal law enactment and even the anticipated annual salary of the applicant.

Non-Conviction Records

When it comes to using non-conviction information in the hiring decision, the legal picture for employers gets a bit murkier.

First, non-convictions are not simply arrests. There are numerous situations in our legal system where a person can plead guilty but not be convicted of a crime. One example is deferred adjudication, in which a case is dismissed based on the defendants compliance with certain terms set by the judge. Most laws relating to the use of criminal information dont address how employers should handle this gray area.

To help manage instances where non-conviction/arrest information comes up on a background report, employers should clearly ask the question, Have you ever pled guilty, no contest or been convicted of a crime? on the employment application. This question captures a wide range of conviction and non-conviction criminal scenarios and, if not answered accurately, can provide the employer with the legal means to deny employment. The EEOC and the courts have supported this.

The majority of laws pertaining to the use of non-conviction information focus on arrest records, and these laws can create more hiring complexities for employers than those relating to conviction information.

Many HR professionals believe arrest records cannot be used in an employment decision. This is not true at the federal level. As with conviction records, there are certain conditions that must be met in order for the employer to have the legal grounds to use the information. The EEOC does prohibit the use of arrest records as an absolute bar to employment. It maintains that using arrest information may result in a disparate impact against minority applicants, because national statistics have shown that some groups of minorities are arrested at a disproportionate rate. However, EEOC policy also states arrest record may be used as evidence of conduct upon which an employer makes an employment decision.

According to the EEOC, the use of arrest records in a hiring decision may be justified through an additional inquiry that determines the following:

  • Whether the applicant or employee engaged in the conduct for which he/she was arrested.
  • Whether the conduct is job-related.
  • Whether the conduct is relatively recent.

Per the EEOC, the employer must provide the applicant with a meaningful opportunity to explain the circumstances of the arrest and must make a reasonable determination as to whether the applicants explanation is credible. Business necessity must be established for the employer to use an arrest record to disqualify an applicant.

State laws may set further restrictions for employers use of non-conviction information, including arrests. Some states are silent on the issue, while others denote inquiries about arrests as inadvisable, and still others impose an absolute bar on using such information. However, none seem to directly address the legitimate uses for arrest information outlined in EEOC policy.

On the CRA side of the equation, the FCRA allows reporting of arrest records dating back seven years, but state laws may further restrict the inclusion of this information in a background report.

Manage Compliance And Screen Effectively

Federal guidelines provide employers with a clear set of conditions to help determine the legality of using conviction and arrest information from a background report in a hiring decision. However, if more restrictive state laws for using this information apply to an employer, they also must be considered. Additional hiring complexities can arise if other types of non-conviction information, such as deferred adjudication, surface on a background report.

The following strategies can help employers facilitate compliance with all applicable laws and navigate the grayer areas of criminal record use.

Treat each criminal record individually. When a criminal record comes up on a background report, consider the job environment, risk to the organization and legal framework for making the hiring decision.

When a criminal record comes up on a background report, consider the job environment, risk to the organization and legal framework for making the hiring decision. Work with your employee screening provider to identify the types of information you want to see included and excluded from background reports.

Be sure the employment application asks questions clearly. An applicants failure to answer a question or deliberate omission of information (as revealed through the background report) can legally be used as the basis for denying employment. The next time you encounter a criminal record on a background report, and must walk a legal tightrope to make the hiring decision, these measures can provide a balancing bar that will allow you to screen effectively and protect your organization from liability.

N. Alexander Erlam, Esq., is general counsel at Truescreen Inc., a Vertical Screen Co.Truescreen is a provider of background screening, occupational health screening and Department of Transportation compliance services to corporations and organizations worldwide.

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