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Screening candidates to fill a position has always been a challenge for employers, regardless whether or not a candidate has a criminal record. These important decisions come with risks. There is always a risk that the employee will not perform the job well or will engage in serious misconduct that endangers others. Depending on the job, applicants with criminal records may present an additional challenge.
Employers can be held liable for a crime committed post-hire by the employee if the employee’s work history provides indications of instability or unreliability, even when the employee does not have any prior convictions. Employers who conduct employment reference checks are rarely found to have negligently hired an employee, even when they determine, after learning of a criminal record, that the prior conviction is not relevant to the duties of the job being filled.
In this post, we’ll cover five best practices to consider for background check standards in order to minimize the risk of liability to your company and ensure safety for your employees.
1. Identify risks and relevance for the background check
As EEOC Guidance points out, proper use of criminal history data begins with looking at the risks that arise from the nature of the job. Starting with the job description for the position, the standards give examples of questions about risks associated with the job that will identify the kinds of prior convictions that are relevant. This is the first determination the employer makes in developing what is called a “Relevance Screen,” which lays out which convictions should be considered in the hiring process.
When applying relevance, employers will want to ensure they are only using records that would directly affect the performance or duties of the job. For example, if an employee will not be handling money, or the financial end of your business, a credit check could be considered invasive and unnecessary. In addition, only convictions and pending prosecutions should be considered. Arrests that are not subject to active prosecution should not be considered. In states that do not allow consideration of any arrests whatsoever, the state law must be followed.
2. Choose a reasonable look back period.
Human resource professionals commonly use what are called “look-back” periods, or lengths of time to consider a conviction relevant. These periods are calculated from the date of the conviction or, if the applicant was incarcerated, from the date that he or she was released from incarceration or on parole.
Several states have regulated the length and/or the beginning date for this “look-back” period by state statute, and it is critical that employers be sure to hire a Consumer Reporting Agency for background checks that complies with the applicable local law. If there are no state law time restrictions, the employer should consult other sources to decide what “look-back” period to use for the job in question. Both for the duration of the “look-back” period and the commencement of the “look-back” period, any of the commonly used periods are consistent with these Best Practice Standards as long as the employer does an individualized assessment review for qualified candidates.
3. Don’t ask about convictions on an application.
While there are exceptions, job postings or announcements generally should not refer to criminal background checks, and the application form should not require candidates to list convictions. Ban the Box regulations restrict when an employer may ask a candidate about criminal history. The number of states and communities that support Ban the Box continues to grow. Coverage usually applies where the applicant lives, although some cities defer to the applicant’s place of work.
An article on ensuring fair hiring practices in HRO Today explains the employer’s role in Ban the Box regulations. “Ban the Box ensures that previously incarcerated individuals have a fair chance of getting to an interview stage to demonstrate whether he or she is the best candidate for the job,” says Cisive’s Chief Compliance and Data Protection Officer, Vice President, and Corporate Secretary Bruce Berger. “Employers must still take responsibility to ensure that they will only consider convictions that might be relevant to the position to be filled and that evidence of rehabilitation is considered at the time since conviction or release from incarceration.”
The Cisive platform ensures state-specific Ban the Box documents are presented to the correct person when necessary to comply with legislation, improving your time to fill and streamlining your workflow.
4. Use an experienced consumer reporting agency (CRA).
Employers should engage the services of a qualified and experienced organization that provides background screening services. These companies often provide several options for the nature and extent of the background investigations they conduct. Under the Fair Credit Reporting Act (FCRA) and parallel state statutes, any communication of information from such an organization that is used to establish a person’s eligibility for employment is a “consumer report.”
Employers should carefully consider the reliability and quality standards of all Consumer Reporting Agencies it is considering before making a selection. Employers should work with a firm that demonstrates familiarity and compliance with the FCRA and parallel state requirements. Price should not be the determining factor in choosing a CRA.
Employers should also consider whether the CRA has a certification of reliability or accreditation from a reputable organization. As described below, other factors to consider include whether the CRA follows the recommended best practices for using online databases, such as determining whether a reported conviction is that of the applicant and getting current dispositions. The report format is also important to evaluate.
5. Confirm all conviction data from the original source.
Some Consumer Reporting Agencies offer inexpensive “criminal background checks” based solely on database searches. It is never a good practice to rely on reports based solely on these searches. While they contain useful information, databases are not current and accurate, principally because they are not updated regularly and may not contain all relevant records. Any reliable report must search the records available from the courts in the county and/or state where the candidate resided. Additionally, if federal crimes are considered relevant for the position, the appropriate U.S. District courts should be searched.
Above all, it’s important to get to know your background check service provider to understand the level of service, information, support and resources they are able to provide you. These standards are not only an important part of your hiring, recruiting, and retention efforts, but are equally important in the areas of FCRA compliance and regulations.
This post contains excerpts from the Best Practice Standards: The Proper Use of Criminal Records in Hiring -Lawyers’ Committee for Civil Rights Under Law, The Legal Action Center, and National Workrights Institute.
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