Are Your Criminal Background Checks Legal?

Are Your Criminal Background Checks Legal?

Criminal background check formMany, many companies are requiring job seekers to pass criminal background checks before they can be hired — and many of those companies are unwittingly breaking the law by doing so!

The laws that regulate the use of criminal background checks in hiring processes are actually very specific, and often require critical analysis of individual situations in order to be adhered to properly.

Blanket criminal history policies that bar all individuals with criminal backgrounds from employment are illegal, even though use of blanket policies is very widespread in the business world.

Don’t land your company in hot water!  Make sure your criminal history policy is legal!

The legal nitty-gritty:

The Equal Employment Opportunity Commission (EEOC) has stated that “an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.”

Why is it unlawful?  Because it is believed that arrests and convictions have a “disparate impact on some racial and ethnic minorities”.  Meaning that if you implement an absolute bar to employment based on arrests and/or convictions, it may result in racial discrimination.

This does not mean that you have to disregard an applicant’s convictions.  It does mean, however, that you must consider each person individually and apply judgment based on the position and the individual’s circumstances.

Useful guidelines for a legal criminal background policy:

To obey the law, your criminal history policy must be intelligently applied on a case-by-case basis.  Here are some questions you should ask yourself about an applicant’s criminal record when considering them for a job.

How long has it been since the conviction and/or the completion of the time served?

Washington State’s guidelines on the Employment Security site suggest that you should not consider any convictions or arrests that are older than ten years.

What was the nature and gravity of the offense?

Petty theft is one level of offense, and first degree murder is a whole different one.  You must consider the nature and severity of a crime, and determine that there is a logical reason for that crime forming a bar to employment.

For example, you might be concerned about crimes such as theft or burglary if your construction company does remodeling in occupied homes.  But what about someone with a reckless driving conviction?  Is the nature and severity of that offense one that would actually have a bearing on construction work?

The answer could very well be yes, of course, but the real point here is that you have to ask yourself this question in the first place — and then answer it using defensible logic.

What is the nature of the job sought?

Just like you must take into consideration the gravity and nature of someone’s offense, you are also required to factor in the nature of the job you’re hiring for when considering an applicant’s criminal record.

For instance, are you hiring a day laborer, or a Chief Financial Officer?  These are vastly different jobs, and you would thus need to consider applicants’ criminal histories in a different light for each position.

For one job, it would be appropriate to deem any crimes relating to finance to be a bar to employment.  However, for simple labor work, it would probably be unreasonable to say that someone’s insider trading conviction has a bearing upon the duties they’re performing.

Does your business have certain requirements by law or statute?

Some organizations have special exemptions, such as law enforcement agencies, financial institutions, school districts, those caring for vulnerable citizens such as children and those that are mentally ill or developmentally disabled.  If your industry has special exemptions or requirements, make sure you understand them.

The dangers of blanket criminal history policies:

To give you some idea of the minefield your company could create with a blanket policy, here are some recent lawsuits which were filed in 2010:

  • Johnson v. Locke: This is a class action lawsuit against the U.S. Census Bureau for excluding people with criminal records from temporary positions with the Census
  • Mays v. Burlington Northern Santa Fe Railroad Company: Burlington Northern is accused of discrimination due to their blanket policy of not hiring people with felony convictions within the past seven years.

As the EEOC cracks down on these types of policies, we all want to stay out of their line of sight.

Even your job ads can get you into trouble:

You may be applying the rules correctly, but even if you are, you still have to be sure your job postings are accurate.

The NELP website has many job postings with examples that clearly violate EEOC guidelines.  Some well known companies, such as Domino’s Pizza, Adecco, and Berkshire Hathaway are among them.  If their job postings aren’t in compliance, it’s probably a good idea to review our own!

Statements such as “no felonies of any type, no exception” are the types of wording that will get your company in trouble.

An example of a criminal background policy in action:

Here’s an example to give you an idea of how a properly applied criminal history policy works.

Imagine you’re considering a candidate for a job handling your company’s finances.  You conduct a criminal background check on him, and it turns out he has a record.

  • If he’s had a conviction for embezzlement in the last ten years, that could be reason to not hire him
  • If he was convicted for drunk driving, that would not be a reason to bar him from employment, as it doesn’t relate to the job he’s  applying for
  • If he was convicted for forging checks 25 years ago, served two years for the crime, and has worked successfully as an accountant for the last 23 years, you would not have good cause to bar him from employment

How it works when considering arrests that haven’t become convictions:

If you are considering arrests that have not yet resulted in a conviction, you are required by the EEOC to use your judgment.

You must give the employee the opportunity to explain the situation, then you’ll have to use your best judgment to decide if the employee is guilty.  But, even if you think that he or she is guilty, you must still apply the same rules.

What is the nature and gravity of the offense?  How does it relate to the position?  Remember, we’re all innocent until proven  guilty, so this is delicate territory!

And, if someone was arrested, and found innocent, you must not consider that arrest.

Helpful resources:

Employment Security has a helpful website with information on pre-employment inquiries

NELP has a desktop guide on the use of criminal background checks in pre-employment, which you can print out and give to your supervisors and hiring managers


One in four American adults has an arrest or conviction that will show up in a criminal background check, according to the National Employment Law Project (NELP).  This can be a huge impediment to employment, as more and more companies use criminal background checks when filling positions!

According to a poll conducted last year by the Society of Human Resource Management (SHRM), 92% of businesses used criminal background checks for some or all of the jobs that they filled.  That’s a really high number, especially given how very strict the guidelines are about how companies may use criminal background checks as part of their hiring processes.

We often hear of companies misapplying these rules, putting themselves at risk of lawsuits.  Hopefully with some guidelines and useful tools, we’ll find it easier to abide by them.

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