Is Your Criminal History Hiring Policy Illegal?

Is Your Criminal History Hiring Policy Illegal?

Criminal Background CheckAre you using criminal background checks to determine how to hire? 

If so, you’d better make sure you aren’t breaking the law!

Some stats about criminal backgrounds:

According to the National Employment Law Project (NELP), one in four American adults has an arrest or conviction that will show in a criminal background check.

This can be a huge impediment to employment, as a Society of Human Resource Management (SHRM) poll showed that 92% of businesses polled use criminal background checks for some or all of the jobs they fill.

Why it’s illegal to have a blanket hiring policy barring people with criminal backgrounds:

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.”

This means that if you implement an absolute bar to employment based on arrest and/or conviction, it may result in racial discrimination.

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

Here are some guidelines to help you apply your criminal history hiring policy:

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

If the conviction was last week or last year, you probably stand on solid ground to consider it. If it was 30 years ago, and the time served was completed 29 years ago, you may be on a slipperier slope.

What was the nature and gravity of the offense?

Petty theft is one level of offense and first degree murder is a whole different magnitude. You might be concerned about crimes such as theft or burglary if your construction company does remodeling in occupied homes. But would a reckless driving offense apply?

What is the nature of the job sought?

Are you hiring a day laborer, or a Chief Financial Officer? You might consider their criminal histories in a different light. For one, crimes relating to finance will be appropriate, while they might not relate to the other.

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.

Recent lawsuits about blanket criminal background policies:

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

Job ads can also get you in trouble:

The NELP website has many job postings with examples that clearly violate EEOC guidelines. Some very 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 statements that will get your company in trouble.

What a properly applied criminal history hiring policy looks like in action:

You conduct a criminal background check on an applicant who will handle the company’s finances. If he/she has had a conviction for embezzlement in the last ten years, that could be a reason to not hire them.

If they have had a conviction for drunk driving, that would not be a reason to bar them from employment, as it doesn’t relate to the job they are applying for.

If they had a conviction for forging checks 25 years ago, served two years, and have worked successfully as an accountant for the last 23 years, you would not have good cause to bar them from employment.

Considering arrests when hiring:

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? If it’s for domestic violence, for instance, how does that 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.

Some great resources for you:

If you do decide to take a chance on someone who has a criminal conviction, Washington State offers a free Bonding Program, which will protect your business against employee dishonesty.

Employment Security has a helpful website with information on pre-employment inquiries. The best practices can be printed out and given to your supervisors and hiring managers.

The wrap-up:

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

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