Can I Use Arrest and Conviction Records When Hiring?

by Laura Kerekes on July 2, 2012
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You operate your small business with only the staff you need, and you rely on your employees to keep the doors open and customers happy. Hiring a lawbreaker is not something you ever want to do, so you always check job applicants’ references and records thoroughly.

In the past, that was an excellent call. However, the U.S. Equal Employment Opportunity Commission in late April updated its recommendations for how employers may use arrest and conviction records in the hiring process to avoid discriminatory practices. The new “enforcement guidance,” which took effect immediately, reinforces the federal agency’s position that employers who rely on arrest records when hiring may unfairly impact some job candidates based on race or national origin.

The EEOC says that an arrest, by itself, does not establish that criminal conduct has occurred; people are presumed innocent until proven guilty. And old conviction records that have nothing to do with the job at hand may also unfairly affect certain individuals protected under Title VII of the Civil Rights Act.

“The EEOC expressed a clear preference that employers consider each job candidate on an individual basis, as the nature of the applicant’s conviction, the nature of the particular job, and how much time has elapsed since the applicant was convicted will raise different levels of concern about different types of criminal backgrounds,” Joseph Schmitt, a labor and employment lawyer at Nilan Johnson Lewis, explained to Law.com. He advises employers “to carefully consider the business relationship between the particular job and hiring exclusions due to a criminal conviction.”

6 Practical Tips for Hiring Employees

Of course, there are still some actions you can take to check records without running afoul of the law. Here are six best practices for hiring and screening that comply with the new rules.

  1. Identify the essential requirements of an open position. This is important, both as a screening tool and as justification for the hiring decisions you make (if challenged). For example, if the position requires handling cash or independently opening or closing the store, then you have a job-related reason not to hire an applicant with a recent theft conviction.
  2. Update your screening process to consider factors that are “job-related and consistent with business necessity,” with a targeted approach that considers:
    • The type and severity of the crime;
    • The time passed since the offense/conduct; and
    • How that ties into the open position.
  3. Make decisions more heavily weighted on actual convictions than arrests. Even the EEOC acknowledges that a conviction record is typically evidence that the applicant engaged in the crime for which he was convicted.
  4. Document the reasons why a candidate’s past record excludes her from that particular position based on your job-related criteria. Remember that, per the EEOC, a blanket policy against hiring applicants who’ve been convicted of any crime is not “job-related and consistent with business necessity.”
  5. Keep the information you collect confidential. Never share the details of an applicant’s or employee’s arrests or convictions. Use the information only for the purpose for which it was intended.
  6. Train employees who make hiring decisions. Protect your business by making sure they’re aware of the rules against employment discrimination.
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