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Criminal Background Screening – Employers & Corporate Counsel

By Hayes Hunt and Jonathan Cavalier

So how can employers implement beneficial, effective criminal background screening in their hiring processes while ensuring that they remain in compliance with the law? A few simple steps will go a long way.

1. Draft a written background check policy that complies with the law.

Any employer choosing to use criminal background checks as part of a hiring process should have a policy. The policy should be written in clear, plain language and made available to applicants. It should state that the employer will use the background check to search for criminal history that has a direct relationship to the job at issue, and that only those criminal convictions will be considered. The policy should also expressly state that the employer is an equal opportunity employer and that it will not discriminate on the basis of any protected characteristic in the use of background checks or in hiring decisions. Finally, the employer may consider providing candidates not hired because of the existence of criminal convictions the opportunity to discuss the conviction with the employer.

2. Follow the policy in performing background checks and making hiring decisions.

If an employer has a background check policy, it must be followed. All applicants for a given job should be screened. Screening must not be used selectively or on an individual basis. Doing so is a recipe for a discrimination lawsuit. The employer must also make sure that anyone involved in hiring or background screening is trained on the employer’s policy and on how to implement and follow it. Interviewers should be prepared to field questions from applicants about the screening policy and what it means if an applicant has a criminal conviction. Finally, the employer must abide by the policy and only consider convictions that have a direct impact on the applicant’s fitness for the particular job at issue.


3. Document everything, including the reasons for hiring decisions.

If criminal background screening is performed on applicants, the fact that a check was performed and its results should be made part of the applicant’s file. If a conviction is uncovered and that conviction is used in evaluating the applicant, the employer should document the ways in which the conviction is related to the job at issue and the weight given to the conviction in evaluating the applicant. If the applicant is not hired or given further consideration solely or partly due to a conviction, the employer should document that fact. If the employer disregards the conviction and hires the applicant, the reasons for that decision should be documented as well. Finally, the employer should provide an applicant who was not hired based on the existence of a criminal conviction a copy of the background check and the reasons for nonhire.

4. Consider outsourcing.

Often, an employer can shift the downside risk for criminal background screening to a third party by hiring a vendor to perform the screens. If an employer chooses this method, the employer should be sure that the contract clearly spells out which party will bear responsibility for discrimination or negligent hiring claims. The employer may also want to insist on an indemnification, if possible, from the vendor.

This law on the use of criminal background checks in hiring decisions is extremely dynamic and is under constant scrutiny from both advocates and opponents. Consideration is constantly being given to proposed changes in the laws at the federal, state and local levels. Other local governments are considering ordinances similar to “Ban the Box.” Lobbying groups are pushing hard for similar laws on the state and local levels. Employers utilizing criminal screening processes and interview questions must know the law in each area in which they do business and monitor for changes in those laws. Most of us believe, deep down, in second chances. However, businesses must be vigilant in employment decisions by using background checks.

By implementing reasonable, written policies on criminal background checks, documenting the reasons for hire and paying careful attention to the law, employers can reap the benefits of applicant screening and reduce liability.

Published in The Legal Intelligencer on August 8, 2012

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