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