Employment Background Checks – Efforts To Prevent Full Transparency To Employers … by Banning the “Check Box”

 By Dugan P. Kelley, Esq.

By 1996 estimates show that only roughly 50% of employers were using criminal employment background checks to vet potential employees.  By 2003, over 80% of employers had implemented criminal checks and that percentage has grown to over 95%.  Soon, we may see 100% of all potential employers utilize the criminal background check as an indispensable tool for vetting the qualifications and qualities of potential employees.

The Use of Criminal Employment Background Checks as a Tool for Employers:

Many employers need the use of these tools, including having an understanding of a potential employee’s prior criminal history.  Employers have a responsibility to safeguard their business, customers, and other employees.  For employers, it is essential to understand the full picture of someone, including whether they have a criminal history.

Criminal background checks are key factors to improvement in compliance for many employers.  If your company employs individuals in industries where regulatory (state or federal) compliance is needed, the failure to have a criminal background check could be catastrophic.  For example, employing individuals who are not authorized to work in the United States or within a regulated industry can result in fines, lawsuits, and excess costs to employers.

Criminal employment background checks are a great tool for employers in helping cut-down on poor potential candidates for employment, including areas of high concern for employers like avoiding candidates with histories of theft, violence, or other major areas of concern.

Criminal background checks can also help improve your company’s overall retention of employees.  Making the smart choice at inception is key to avoiding costly employee turnover, retraining, and related costs associated with having to terminate an employee at a later date.

Not everyone is thrilled with the rise of criminal employment background checks.  In fact, privacy advocates, civil rights organizations, the ACLU, and lobbyists have continued to organize efforts to prevent criminal employment background checks and in particular the box on many employer’s applications for employment.  Their goal – banning an employer’s right to have the box “Have you been convicted of a felony?” on the employment application.  They argue that a person’s criminal history should not overshadow or be the determining factor in employment.

Trends for States in Criminal Employment Background Checks:

There are a total of 25 states that have effectively required potential government employers to delay asking about prior criminal history until later in the hiring process.  [California (2013), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Rhode Island (2013), Tennessee (2016), Vermont (2016), Virginia (2015), and Wisconsin (2016)]. Nine additional states—Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont—have removed the conviction history question on job applications for private employers, which advocates embrace as the next step in the evolution of these policies.

However, most states still protect the employer’s rights to inquire into a potential job candidate’s prior criminal history in a criminal employment background check.

The Law Protects Employer’s Rights to use Criminal Information in Employment Background Checks:

Setting aside the fierce debate on both sides of this controversial issue, Federal law does not prohibit employers from asking a job candidate about their criminal history. However, an employer cannot discriminate on the basis of a criminal history.  Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964.

Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).

“Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:

  • They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND
  • They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.” EEOC.

In addition to the EEOC, the Federal Fair Credit Reporting Act (FCRA) sets national standards for employment screening.  Under the FCRA, a background check is considered a consumer report, which restricts what can or cannot be reported to potential employers.  The following items cannot be reported: bankruptcies (after 10 years); civil lawsuits, civil judgments, records of arrest (after 7 years); accounts in collection (after 7 years).  However, the FCRA allows criminal convictions to be reported indefinitely, unless your state provides otherwise (e.g. California follows a 7 year rule).

Key Tips for Employers in using Criminal Employment Background Checks:

The status of the law may seem confusing, but there are fine distinctions to be made for employers.  Employers should develop and memorialize a “neutral policy” in hiring.  This means that the criminal conviction is not dispositive of a candidate being rejected for possible employment.

When a background check is run and the employer has information showing that a potential employee has a potential criminal background, make sure your decision to hire or not hire is not based on this factor alone.  The FCRA imposes responsibilities on employers and their criminal background checks.

Employers thinking about employment background checks should remember to:

  • Get the applicant’s written consent before requesting a check.
  • Give the applicant notice if the employer plans to screen him or her out based on the contents of the report. In this situation, the employer must also give the applicant a copy of the report.
  • Notify the applicant once the employer makes a final decision not to consider the applicant based on the report.
  • Evaluate the actual position and assess whether the criminal background would have any impact on the candidate’s ability to perform the actual job;
  • Identify the essential job requirements and evaluate the criminal conviction in light of the actual job; and
  • Do an assessment and record that assessment in the hiring process.

You may need to train, or hire qualified professionals to train your HR department and other executives making the hiring decisions.

*This article is for education use, and not to be relied upon as legal advice for your particular situation.  You should always contact a lawyer directly to speak about any particular issue affecting you or your company.  Dugan P. Kelley is the managing shareholder of Kelley Clarke PC, a boutique national firm that handles employment and labor law.

For more information, please go to his website www.kelleyclarkelaw.com

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