Maintaining Compliance in Hiring Decisions When Applicants Have a Criminal Record

Research suggests that nearly one-third of adult, working-age Americans have a criminal record1. Over 8% of the overall population have felony convictions2. Through additional comparative analysis, the Brennan Center for Justice concludes that “America now houses roughly the same number of people with criminal records as it does four-year college graduates1.” The Brennan Center goes on to say that “regardless of race or gender, researchers estimate that by age 23 nearly one-in-three Americans will have been arrested1 .”

As a result, the last few decades have brought about significant legislation changes aimed at providing individuals with a criminal record a fair chance at future employment. Following are five important questions that should help employers determine their company’s legal compliance when reviewing applicants with criminal records.

Is your employment application compliant? Laws that “Ban-the-Box” on Applications (also referred to as Fair Chance Laws).

The late 1990’s “ban-the-box” campaign advocated for the removal of the employment application’s check box that asked if applicants had a criminal record. The idea was that qualified applicants with a criminal record would be given a fairer chance in authenticating their qualifications through interviews and reference checks. In other words, applicants would not be immediately dismissed from the candidate pool. With ban-the-box, the applicant’s criminal records would only become available much later in the review process.

As of July 2019, the National Employment Law Project (NELP) reports that 35 states and over 150 cities and counties have adopted “ban-the-box” legislation and 13 of those states mandate it for private employers, too3. In 2015, President Obama mandated the removal of the criminal record question on applications for federal government jobs.

How does this affect your business? Check out this helpful resource from NELP that outlines policies by state.

Have you provided applicants with proper disclosures and obtained written consent for background screening?

As a baseline, you must first disclose to applicants that you will conduct background screening for employment purposes. And it’s critical to procure written consent before proceeding with a screening. For more in-depth information specific to FCRA mandated disclosures and consent requirements, see our post The Fundamentals of Pre-Employment Background Screening.

What criminal records are you legally allowed to review and consider in employment decisions?

The FCRA allows convictions to appear on background screening results regardless of time. However, certain states have limited the reporting of convictions to the last 7 years including: California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Mexico, New York, New Hampshire, Texas, and Washington.

For non-convictions (resulting from not-guilty verdicts, dismissed charges or formal notice of abandonment by plaintiff or prosecutor), the FCRA allows background screening results from the last 7 years only. Certain states don’t allow any non-convictions to be reported including California, Kentucky, New York and New Mexico.

Have you completed a thorough due diligence in assessing the criminal offenses in relation to the requirements of the position?

The EEOC provides guidelines which are often referred to as the Green Factors. These guidelines help employers determine the relevance of the criminal offense on the applicant’s ability to perform the job. These factors include a review of:

  • The nature and gravity of the offense
  • The time passed since the offense
  • The nature of the job sought and the relevance of the offense to performing the job

Individualized assessments should be used to allow applicants an opportunity to disclose additional information concerning their crime as well as to advocate for their ability to complete the job requirements despite the offense.

Keep in mind that there also laws prohibiting the hiring of applicants with specific criminal convictions (i.e. financial sectors, transportation industry, child or elderly care). These laws should obviously be considered in the evaluation of an applicant with a criminal record.

If you must make an adverse action decision, do you have a formal policy and procedure to ensure fairness and consistency?

Having a formal policy and procedure in place for adverse action decisions ensures your company is compliant with EEOC guidelines to “apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).

For more information on implementing standards for adverse action decisions, see our post 5 Steps for Ensuring Compliance in Adverse Action Decisions.