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Criminal Background Checks are a Minefield for Employers

A big issue that will continue to vex hiring managers this year is criminal background checks of job applicants. Employers should be cautious in how they use background checks while we wait for the courts to clarify an area of the law that is fraught with peril.

In 2012, the EEOC issued guidelines that limit – but don’t forbid – the use of criminal background checks in the hiring process. The EEOC referenced statistics that said one in 12 African-American men between the ages of 18 and 64 were incarcerated in 2008, compared to one in 87 white men in the same age range. Thus, any employer policy that automatically excludes ex-felons will have a disparate impact on minorities and could violate Title VII of the Civil Rights Act of 1964, the EEOC said. 

This doesn’t mean employers can’t ask about an applicant’s criminal background, but the EEOC has placed the burden on the employer to prove that such inquiries don’t result in bias against minorities and are necessary to fill the job opening. The EEOC offered no bright-line rules, however, leaving it to employers to interpret what these guidelines mean in actual hiring. At the same time, employers must continue to be concerned about negligent hiring lawsuits, which can be the unfortunate consequence of disregarding an applicant’s criminal background, particularly if it involves crimes of violence.

The courts gradually will provide more guidance on this subject as employer policies are challenged in lawsuits. The following best practices may help you avoid becoming one of the test cases in this emerging area of litigation.

  • Put your policy in writing. This will inform your managers and provide a potential defense in litigation. The policy should provide guidelines on how such information will be used to determine fitness for specific categories of jobs. Your legal counsel can advise on how to structure a policy that protects you from claims while meeting the needs of your business.
     
  • Don’t ask about arrests. While the EEOC doesn’t forbid looking at arrests – and even allows consideration of the underlying conduct in arrests that didn’t result in convictions – we advise you not to go there. An arrest without a conviction almost certainly will put you on the defensive in a hiring dispute.
     
  • Don’t ask until later. Don’t ask about criminal background on the initial job application. Most initial applications are rejected anyway, and you don’t want to provide a toehold for an accusation of blanket screening of ex-felons. Hold the criminal background question until the second round.
     
  • Keep good records. This will prove you followed appropriate procedures in using background information. Without records, including notes from interviews, it may be difficult to prove that you didn’t reject an ex-felon as part of a general screening.
     
  • Limit the scope of questions. Questions about criminal background should be limited to those offenses that are relevant to the job. For example, a driving record is relevant for someone who drives a truck, but not to a receptionist. Serious crimes that involve violence or major theft arguably always are relevant.
     
  • Gravity, time and relevance. There is a three-pronged EEOC test for using conviction information: the seriousness of the offense, the time that has elapsed since the offense, and how it is relevant to the job. Be prepared to explain how you weighed these factors in rejecting an applicant.
     
  • Disclosure to the applicant. If you screen out an applicant because of a criminal conviction, you must notify them and give them the opportunity to explain why other factors outweigh the conviction. The individual may want to explain mitigating circumstances or tell you about the exemplary life he or she has lived since the conviction. The EEOC calls this an “individualized assessment,” and it shows that an employer was willing to consider all the circumstances of an ex-felon’s life before making a decision.
     
  • You must reject some applicants. Federal and state laws continue to require employers to reject people convicted of certain crimes. This includes people who work around children, airports, banks and certain other occupations where security is a paramount concern.
     
  • Safety trumps everything. . Don’t place employees or customers at risk by hiring someone who has demonstrated a past propensity to violence or other destructive behavior. If it’s a judgment call, always err on the side of safety. We would rather defend you at the EEOC than before a trial court jury following a horrible incident.

Finally, don’t leave this issue to the good intentions of your hiring managers. Develop a policy that serves the needs of your company, train everyone who has a hand in hiring decisions and rely on your legal counsel to guide you through an area of the law that promises much uncertainty for the next several years. 

Reginald W. Belcher is a shareholder at Turner Padget in Columbia, S.C., and represents businesses and employers throughout the state. The South Carolina Supreme Court has certified him as a specialist in Employment and Labor Law, and he writes employee handbooks, affirmative action plans, employment contracts, severance agreements, and non-compete and restrictive covenants. Belcher trains supervisors and managers on compliance issues involving wage and hour laws, workplace harassment and union avoidance. He may be reached at rbelcher@turnerpadget.com or (803) 227-4314.

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