The U.S. Equal Employment Opportunity Commission guidance on the use of criminal records in hiring includes three best practices:
• Focus screening on convictions rather than arrests.
• Avoid blanket exclusions such as no convictions or no felonies.
• Develop a screening policy tailored to specific job requirements.
The legal experts and criminal background check providers interviewed for this article offered their own suggestions on how to use conviction records to exclude problem employees while managing legal risk.
Collect only job-relevant information: According to Al Sparaco of background check provider Baker St. Associates, many employers don’t realize they can ask their screening vendor to return only disqualifying crimes occurring within the exclusionary time frame. Focusing search results on only job-related information controls variation in the screening process.
Conduct individualized assessments: “Surprisingly, many employers are unaware of the individualized assessment requirement,” said John Lawrence of the background check firm General Information Services Inc. What’s more, many informed employers find the requirement too taxing.
In response, Donald Livingston of Akin Gump said, “It is OK to put the burden on the applicant to provide information that might change the employer’s mind. Individualized assessment does not have to be a lengthy, cumbersome or time-consuming process. The employer can simply consider the information provided to see if anything warrants an exception to policy.”
Treat applicants consistently: Care must be taken so individualized assessment doesn’t have the unintended consequence of treating similarly situated applicants in an inconsistent manner, thereby opening the door for a disparate treatment claim.
David Fortney of law firm Fortney Scott explains: “An employer could have hundreds of different people making employment decisions. Implementing proper training on how these individualized assessments are to be carried out is crucial to having an effective and compliant process.”
Be aware of differences in state and local laws: One mistake employers commonly make is not being attentive to state and local laws. “Variation in laws is significant and compliance is cumbersome due to frequent changes,” Livingston said. “It is difficult for employers with establishments in different states and cities. Employers must make sure uniform company policies meet the most stringent requirement.”
Many differences in laws stem from variations in the criminal background questions allowed on application forms — so-called “ban-the-box” statutes. Such variations pose a challenge to applying criminal background check criteria consistently.
Obtain management buy-in: To promote consistency, Sparaco emphasizes the importance of support from the top levels of the organization. “You need senior management buy-in to any background screening program. Otherwise, people take shortcuts and the program doesn’t work effectively.”