Most employers look for criminal convictions on applicants as part of the hiring process. And there are now as many Americans with criminal records as there are Americans with college degrees. Statistics.
So what happens when a job candidate’s background check reveals a criminal record?
Your firm should have an individual on staff that is familiar with applicable laws and regulations. That person doesn’t have to be an attorney. But, that person should know the basic compliance process i.e. how to comply with at least the Fair Credit Reporting Act (FCRA), if you are using a consumer reporting agency, and requirements of the Equal Employment Opportunity Commission (EEOC).
Most of the FCRA lawsuits concern omissions and failures by employers. These include but are not limited to:
- Omitting the written and conspicuous disclosure,
- Failing to get the individual’s authorization,
- Failing to properly notify the individual that adverse action is about to be taken,
Many think that federal law stops employers from obtaining criminal conviction records. Not so – we have a post on that topic here . And there is much confusion about ban the box legislation. Many employers incorrectly assumes this prohibits them from obtaining criminal conviction records. This is also not true. Ban the box legislation usually postpones the timing of the criminal conviction question on the company document and the criminal conviction search.
The Equal Employment Opportunity Commission (EEOC) published updated guidance on employers’ use of criminal background checks in April 2012 to address its concern that criminal background checks have an unintended discriminatory impact on particular minority groups. EEOC Guidance conviction and arrest records When a background check reveals that a candidate has a record, employers should review the EEOC guidance to ensure that the nature and gravity of the offense are taken into account along with the time that has passed since the conviction and the nature of the job held or sought.
Using a Hiring Matrix
Employers have the option of creating a hiring matrix specific to their workplace, which can help determine which criminal convictions the company considers relevant. The guidelines should be applied consistently and create a clear standard against which every applicant is measured. Qualifications based on criminal history should be position-specific, and should not include blanket policies. For example, even the EEOC guidelines contain an example of an employer appropriately taking into account the driving record of someone driving a bus for a school. It is appropriate to take into account a theft conviction for jobs involving access to money, and violent crimes for jobs involving access to vulnerable populations and past sexual offense crimes for job that interact with children.
So the hiring matrix can be a useful tool to avoid any unintended bias, ensure that hiring managers are held to a consistent standard, and to document that a criminal background screening policy is job-related, related to job necessity and being applied in a nondiscriminatory way. It is important the hiring matrix not be constructed to have green, yellow and red indications. Rather even those instances that indicate the individual’s past criminal conviction disqualifies should be allowed to respond to the individualized assessment process.
The 2012 EEOC guidance on the use of criminal records created a de facto new requirement i.e. the individualized assessment.
In order to prevent the potentially discriminatory impact of criminal records on the hiring process, employers are instructed to inform applicants through writing, by telephone, or in person that they may be excluded because of past criminal conduct, and provide them with an opportunity to demonstrate that the exclusion does not properly apply to them. According to the agency, some factors to consider when conducting an individualized assessment include:
- Additional facts or circumstances surrounding the offense.
- Age at the time of the offense or the time of release.
- Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct.
- Employment history before and after the offense.
- Rehabilitation efforts.
- Employment or character references along with any other information regarding fitness for the particular position.
Employers would be wise to include in their background screening policies consideration of the Green factors. These factors are relevant to assessing whether a criminal record exclusion is job related for the position in question and consistent with business necessity. The three factors to consider are:
- The nature and gravity of the offense.
- The time that has passed since the offense and/or completion of the sentence.
- The nature of the job held or sought.
The EEOC has recently stepped up enforcement against employers that use criminal background-screening procedures, though with mixed success. In those instances where employers have been successful, employers were able to provide clear and substantial documentation of their compliance with applicable laws and regulations. See our posts to find out why they were successful Freeman Kaplan Peoplemark
Understanding the Adverse Action Process and the FCRA
Before rejecting a job applicant based on information obtained in a background screen, companies are obligated under the FCRA to follow a two-step adverse action process. First, employers have to give applicants notice before a hiring decision is made informing them that they might be rejected based on the results of a background check. This is called the pre-adverse action letter. Companies must provide to the applicant the following in advance of a decision:
- A copy of the consumer report that was obtained and relied upon to make the decision.
- A copy of the FCRA’s A Summary of Your Rights under the Fair Credit Reporting Act.
- The name, address and phone number of the background screening company that provided the screening report.
This gives the applicant an opportunity to review the background report, challenge any inaccuracies in the report, and clear any negative information that is disqualifying him or her from the job.
The FCRA also requires a second notice be given an applicant if an adverse action—the decision not to hire—is taken based on information in the background report. This is called the adverse action letter and it tells people about their rights to see information being reported about them and to correct inaccurate information. The notice must include:
The name, address, and phone number of the consumer reporting company that supplied the report.
A statement that the company that supplied the report did not make the decision to take the unfavorable action and can’t give specific reasons for it.
A notice of the person’s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days. Often we get questions about how much time between the pre-adverse action letter and the adverse action letter is reasonable. In a 1997 Federal Trade Commission (FTC) opinion letter, the agency stated that five days “appears reasonable. Frankly, we are not aware of any FCRA lawsuits that allege an insufficient amount of time between the pre-adverse and the adverse action letters. The Dispute Process
While background screening companies have a responsibility to provide accurate and up-to-date information, there are instances when a criminal record may be reported incorrectly. Background screening companies use name, address and date of birth as identifiers in reporting a positive match on a criminal conviction in a jurisdiction. And, in a country with more than 250 million adults it is quite possible that two people, one with a criminal conviction and one without a criminal conviction could have the same name, date of birth in a jurisdiction. Also public records are not completely free from error, and it is not unheard of that court records might contain mistakes. Sometimes parole records are not updated or a court may not show the final disposition of a deferred decision in a criminal matter.
Candidates have the right to contact the background screening company directly to dispute the accuracy of a background report. If that happens, the background screening company will notify the candidate that a dispute is pending. The FTC requires all disputes be re-investigated. Your Consumer Reporting Agency should perform this investigation of a discrepancy at no additional cost to your firm.