Wednesday, July 24, 2013

Are Criminal Background Checks Illegal?


Criminal background checks can be a valuable resource for employers when recruiting new employees.  Over time, laws have developed that require employers to thoroughly investigate job candidates before hiring them.  An employer who fails to implement appropriate background checks can be held liable for “negligent hiring” if a new employee later becomes a problem.  Criminal background checks often provide necessary protections for employers, but they also carry risks.

In two recently filed lawsuits, the U.S. Equal Employment Opportunity Commission (“EEOC”) has taken the position that criminal background checks should have limited use in the hiring process.  In both lawsuits, the EEOC alleged that an employer engaged in unlawful discrimination by refusing to hire any job candidate with a criminal conviction.  According to the EEOC, an employer’s refusal to hire a candidate solely because he or she has a criminal conviction disproportionately screens out African Americans from jobs.  The EEOC also alleged that such across-the-board policies are not job-related and consistent with business necessity.  The outcome of these lawsuits will seriously impact how employers conduct pre-hiring background checks on employees in the future. 

For now, employers utilizing criminal background checks in their pre-hiring decisions should ensure that their criminal background investigations are lawful.  All employers should make certain that hiring decisions are not solely based on a candidate’s criminal conviction history.  Employers are encouraged to follow the guidelines set forth by the EEOC when utilizing criminal background checks in the hiring process.  The EEOC’s guidelines can be found here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#I

Some factors employers should consider when using criminal background checks to screen potential employees include:

  • Always obtain written consent before obtaining criminal conviction records;
  • Felony and misdemeanor convictions may not constitute an absolute bar to employment;
  • Hiring Decisions can only be based on records of criminal convictions – not arrests;
  • Employers must consider the relationship between a criminal conviction and a candidate’s fitness for the particular job;
  • Employers should consider the number of convictions a person has on his or her record;
  • Employers should consider the nature of the criminal convictions, especially related to the particular job; and
  • Employers should consider the proximity of time between the job application and the conviction.

For more information about the pending EEOC lawsuits, visit: http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm 

If you need any assistance in developing or examining criminal background procedures, please give one of our labor and employment attorneys a call.  We are happy to help!