There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.
Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.
Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when
- considering the nature of the job,
- the nature and seriousness of the offense,
- and the length of time since it occurred.
This is also true for a conviction.
Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer’s use of conviction data in making an employment decision.
In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.
The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant’s written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.
Certain other disclosures are required upon the employee’s request and prior to taking any adverse action based on the reports obtained.
Criminal Background Check Ensures you Employ the service of only Trustworthy, Safe and Capable Employees
A basic criminal background check is a vital tool to utilize in working to make sure that you employ a competent and honest personnel. Regardless of the space on a job application requesting the applicant to state their criminal background, if any, it becomes an unfortunate reality many employees simply just fail to be truthful relating to criminal records. There are many reasons why conducting an employee criminal background check prior to making any hiring decisions is vital. For instance, utilizing a background check might prevent you from employing a potentially dangerous individual that could harm your financial interests as a result of record of criminal theft. In contrast, a employment background check will help ensure you do not hire anyone with a history of leading to real harm to others and therefore allow you to keep a protected operating atmosphere for all of your employees. Fundamentally using a background check helps ensure for you to hire only trustworthy, safe and qualified personnel.
Types of Criminal history checks
When performing a criminal background check you must make sure you conduct the right type criminal background check. Most companies simply conduct a simple criminal background check for the state they reside in. What these employers often don’t know is the fact this type of background check only checks for criminal offenses committed in that particular jurisdiction and fails to search for things like federal criminal charges. This is because of the fact the nation’s government is separated between the federal government and individual state governments. Each have their particular laws each have their own databases listing who committed what crime and when. Realizing this, it is vital you not only conduct a basic criminal background check, but also a federal criminal background check.
Federal Criminal Checks
A federal criminal background check is vital because often time’s federal criminal charges will be the most serious. For example, many drug charges are federal charges. With no information gathered from a federal criminal background check, you could easily employ individuals having a significant drug-related history. Hiring this type of person can lead to such future issues as under-productivity or increased drug use in the workplace. However, many of these potential issues might be prevented by making a federal criminal background check a component of your pre-employment screening repertoire.
Federal Criminal Checks from the Pros
Conducting a federal criminal background check working with a professional criminal background check company is the best and efficient manner where you can perform an federal criminal background check. Using the criminal background check company’s federal criminal background check service, you may be required to enter such information as the individual’s name, address, and social security number into the web-based search engine. The federal criminal background check will then search numerous federal criminal history related databases. Following a complete database search have been finish, the federal criminal background check will let the user determine if any federal criminal history is located. Possessing this information about a prospective employee permits the hiring organization to have a well-informed and less-subjective evaluation of the potential employ.
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Topic: Employment Background Checks
The Equal Employment Opportunity Commission (the “Commission”) approved, by a 4-1 vote, a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (the “Guidance”). This law has already gone into effect.
The revised guidance reflects the EEOC’s long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin. Before disqualifying an individual with a criminal record from employment, the Commission emphasizes, employers should engage in an individualized assessment involving a dialogue with that individual. While the Guidance states that employers would not violate Title VII if they disqualify an applicant based on separate federal restrictions on the employment of persons with criminal records, an employer may not defend a decision to disqualify an individual solely on state restrictions on the hiring of persons with criminal records.
The EEOC has stated that there are two ways in which an employer’s use of criminal history information may violate Title VII. First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin (“disparate treatment discrimination”).
Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
Companies should seek or check with their counsel to review their employment background screening policy. The Equal Employment Opportunity Commission (EEOC) has provided substantial information on their website outlining their stance on the use of Arrest and Conviction Records.
Some of the main points are “disparate treatment” a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.
Also, “job related and consistent with business necessity”.
Employers will consistently meet this standard, according to the EEOC, if:
The employer validates the criminal conduct exclusion for the job using the Uniform Guidelines on Employee Selection Procedures or
Two, the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. This would allow an individualized assessment for those people identified by the screen, rather than a blanket policy, for example, not to hire.
Some Direct Web Links to the EEOC
Global Information Network, LLC. / www.searchinfo.com
Domestic and International Background Check