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Check employees’ criminal pasts at your own risk

A company that conducts criminal background checks on applicants or current employees may be at risk of a discrimination claim.

The Equal Employment Opportunity Commission recently announced a $3.13 million settlement based on its finding that an employer’s criminal background check policy violated Title VII of the Civil Rights Act of 1964.

The policy was not discriminatory on its face, but as applied, it disproportionately excluded African-American applicants from permanent employment. Under the policy, a job applicant would not be hired for permanent employment if the person had been arrested and prosecution was pending – even if the individual had never been convicted of any offense. The policy also excluded applicants who had been arrested or convicted of certain minor offenses.

There is no federal law that clearly prohibits a private employer from asking applicants or employees about arrest or conviction records. Similar to the EEOC, however, Washington’s Commission on Human Rights considers arrest records alone to be unreliable indicators of criminal behavior.

So if a private employer inquires about an applicant’s or employee’s arrest record, the employer may ask only about the preceding 10 years and must also ask whether charges are still pending, have been dismissed, or led to a conviction of a crime that involves behavior that would adversely affect job performance. Washington employers asking about convictions must reasonably tie the inquiry to job duties of the particular position and, again, limit the time frame to within the last 10 years.

The problem for employers in using either arrest or conviction records (or both) arises when they are used as an absolute measure – as a determinative bar – to prevent an applicant (or a current employee) from being hired (or promoted), thereby limiting the employment opportunities of members of a protected group(s).

The EEOC has long espoused the dangers of criminal background check policies that rely on such records in making selection decisions, but this settlement marks the first time the EEOC has reached a settlement with an employer on the issue – and it’s a large one.

So, how does a company avoid encountering a similar situation?

Why are you asking for the information? Employers conducting criminal background checks should do so only after considering the nature of the job. For example: What are the job requirements? Will the individual be interacting with customers? Or will the individual be working alone (with or without access to confidential or sensitive information)?

Employers also should consider the nature and seriousness of the offense. Not every conviction translates automatically into labeling an individual unfit or unable to perform the duties of all jobs. Consider the offense in relation to what the individual would be doing for the company.

How long ago did the offense occur? And what has happened in the person’s life since? If the record stems from a single offense for a youthful indiscretion more than 10 years ago, that differs greatly from multiple similar offenses in the last 10 years that may demonstrate a pattern of behavior.

In considering these issues, employers must balance provision of a safe environment for all employees and customers against systematic exclusion of a significant swath of the population. (According to the EEOC, 65 million adults in this country have criminal records.) Many employers are worried about public opinion and maintaining their image, and do not want it marred by association with “convicted criminals.” There, are, however, ways to both do good and do well (and avoid a lawsuit by the EEOC).

Criminal background checks can provide an employer additional information about an applicant (or employee), or verify information already provided by the individual. They also can help an employer direct the applicant to suitable positions – e.g., if part of the employer’s operations involves work in a structured environment, an individual recently released from prison may do well in such a position.

Or perhaps the individual has acquired some particular skill while incarcerated. Perhaps the person has relevant experience from a job before prison.

Employers also can protect their image and reputation, as well as address employees’ and customers’ safety concerns by proactively assisting those with arrest/conviction records by providing community connections and support. Resources of an employee assistance plan may help, but community resources – a support group, a mentor or a coach – may also benefit the employee (and in turn, the employer).

An employer not ready or able to go that distance can show support in other ways for those 65 million Americans. Employers can participate in job fairs or training programs or volunteer to conduct mock interviews.

Employers can protect their reputations and build their standing in the community by demonstrating social and ethical leadership and responsibly evaluating each individual’s history without a model of blanket rejection of all criminal backgrounds. That’s what the EEOC wants to see: employers looking at the individual and what the person has to offer.

Finally, remember that if a company uses a third-party service to conduct background checks, the Fair Credit Reporting Act imposes a number of requirements on employers, including various disclosures, authorizations and notifications.

This recent settlement and EEOC’s enforcement actions emanate from statistical analyses that show that members of certain minority groups are arrested at a higher rate than their proportionate share of the population would normally suggest. The same goes for convictions.

Employers can still ask for criminal background information, but they should be careful. They should know why and how they’re doing so, as well as what they plan to do with the information. Make sure you’re not the next one that settles with the EEOC for $3.13 million!

Christina Thacker focuses on employment litigation and advice as an attorney with Barran Liebman LLP. Contact her at cthacker@barran.com or 503-276-2199.

About Christina Thacker