An employer should consider whether the criminal record has a relevance to the job at hand
There was a time when any criminal record was sufficient ground for an employer not to hire an applicant. As soon as a background check identified a criminal record, an employer was free not to hire the person.
Well, that time may be in the past. Under the guidance issued by the Equal Employment Opportunities Commission (EEOC) in April 2012, discovering a criminal record alone may not be sufficient to deny someone employment.
The EEOC recommends that employers conduct “individualized assessments” before making employment decisions basing on people’s criminal records. The ultimate question is: what are individualized assessments, and how are they supposed to be carried out? Well, that’s what we’ll look at.
What are individualized assessments?
In a nutshell, an individualized assessment is an in-depth examination of an applicant’s criminal records before making employment decisions basing on those records. According to EEOC recommendations, this examination should take four steps:
- Informing the applicant that they may not be hired as a result of the criminal records
- Giving the applicant an opportunity to challenge or explain the criminal records
- Considering other factors surrounding the criminal record (more on this later)
- Considering a relationship between the criminal record and the position the person applied for
The assessment is especially required in circumstances where the criminal record would typically lead to a denial of employment. For instance, if an employer has a no-hiring policy towards ex-felons, anytime a criminal background check reveals a previous felony conviction, they have to conduct an individualized assessment before actually deciding not to hire the applicant.
Let’s look at the four steps which the assessments should take as per the EEOC recommendations. These steps begin once a background check conducted on an applicant has returned criminal records.
Informing the applicant
The first step is to inform the applicant that they may be excluded from the given position due to previous criminal records found out during a background check. The EEOC doesn’t actually spell out exactly how the employer should inform the applicant.
However, the Fair Credit Reporting Act (FCRA) can provide helpful guidelines for informing the applicant. The FCRA recommends writing to the applicant informing them of four things: (1) that they may not be hired due to criminal records in their background (2) which particular criminal records will be based on to take this decision (3) they have a right to dispute, challenge or explain these records (4) where, when and how they can dispute or explain the information in the background. The FCRA also recommends sending a copy of the background check report along with the letter to the applicant.
Listening to the applicant
After informing an applicant of the possibility of them being denied employment, the EEOC then recommends offering them an opportunity to respond to the employer. This opportunity is intended to achieve one of two outcomes.
The first is for the applicant to challenge or dispute any inaccurate criminal records. It is no secret that background checks sometimes return erroneous information. For instance, a background check on one individual can return criminal convictions of someone else who has a name similar to theirs. Denying an applicant employment because of another person’s criminal records is a gross violation of the applicant’s rights. Having an applicant challenge or dispute the criminal records prevents such scenarios.
The second is for the applicant to explain the criminal records. This isn’t meant for them to justify or make excuses for the criminal records. However, it is to make them provide an employer with information which may not be obvious from merely looking at the background checks report.
The EEOC doesn’t spell out the exact details by which an employer should offer someone an opportunity to explain or dispute the criminal records. It, however, states that the employer should offer a specified time period for an applicant to respond to the criminal records.
The Federal Trade Commission (FTC), in its guidelines for FCRA compliance, recommends offering 3 to 5 working days for applicants to dispute contents of a background checks report. It also recommends leaving the position open during this time period. This advice can apply to the EEOC recommendations as well.
The EEOC gives an employer the leeway to make any decision in the event that an applicant does not challenge or explain the criminal records during the time period offered. Basically, if an applicant doesn’t respond to the employer’s request, then the employer is free to proceed with any decision.
Considering other evidence
Once an applicant provides an explanation, the EEOC recommends that an employer takes into account evidence presented by the applicant. The evidence which should inform the decision-making process includes:
- Any mitigating circumstances or facts surrounding the offense, act or conduct for which the person was convicted.
- The number of offenses for which the person got convicted
- The age at which the person committed the offense, was charged and released from prison
- Evidence that the person has been employed in a similar position after their conviction and/or release from prison
- The consistency of the person’s employment track record both before and after the conviction
- Any rehabilitation efforts which the person has undertaken since the conviction e.g. education and training programs.
- Whether the person can present any character or employment witnesses who can vouch for their suitability for the particular position
- Whether the person is bonded under a local, state or federal bonding program
Relation to the job
Finally, an employer should consider whether the criminal record has a relevance to the job at hand. Basically, according to the EEOC, not every criminal record should preclude a person from every job opportunity. The record should point towards an inability for a person to perform that particular job.
Without spelling out specific details, the EEOC recommendations point out two things which employers can use when assessing relevance. The first is relatedness of the record to the job for which the person is applying. The employer has to be able to justify why a specific conviction would make the person unable to excel in that particular position.
For instance, a DUI conviction can provide a solid basis for not hiring someone to be a driver, but it wouldn’t preclude someone from being hired as an accountant. Similarly, a financial fraud conviction may disqualify someone from being hired as an accountant, but it may not provide sufficient grounds for not hiring someone as a driver.
The second consideration is whether a person has served without incident in similar positions after their conviction. A person who was convicted of financial fraud 7 years ago, and has successfully worked as an accountant with two reputable employers since then, can make a strong case that their criminal record shouldn’t disqualify them from being an accountant.
A clear policy
What the EEOC recommends is that employers develop clear policies which entrench the above steps within their recruitment processes. When the agency investigates possible violations, aside from examining the particular situation, it will also ask for an employer’s recruitment policies. Therefore, to reduce the likelihood of running afoul of the EEOC, employers need to integrate the agency’s recommendations into their recruitment policies. More on the EEOC recommendations can be found here (https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm).