Workplace Culture

Five Ways to Avoid Problems With Background Checks

By Rachel Schaller

Sep. 11, 2013

Employers often want access to an applicant or employee’s criminal history. However, employers should be careful how they obtain and use criminal background information.

Federal and state laws provide guidelines for requesting criminal history information and define when an employer may make an employment decision based on such information, including when information obtained in a criminal background check justifies not hiring an applicant.

Here are five tips to avoid problems that could result from using criminal conduct or criminal history to make employment decisions.

1. Obtain written authorization and provide written notice before requesting a criminal background check.

First, be consistent. Use criminal background checks for all similarly situated employees or not at all. And before requesting a background check from a third-party investigator, obtain the applicant or employee’s written authorization to request the report and tell the applicant in writing that the information you obtain may be used as a basis for an employment decision, as well as the nature and scope of the investigation. The written notice must be in a separate document from a job application, but you can include this separate notice as part of an application packet.

2. Evaluate whether the criminal conduct or conviction is related to the applicant or employee’s actual job responsibilities.

An employment application should make clear that “conviction” includes not only a guilty verdict but also a guilty plea or other dispositions classified as convictions under state law. If the background check reveals a conviction, compare the duties and responsibilities of the position being applied for with the nature and seriousness of the offense and the length of time since it occurred. Conduct is related if it indicates an employee would be unfit to perform the job. For example, a recent conviction for fraud, theft or embezzlement is related to a position where the applicant would handle credit card information, but a driving-under-the-influence conviction may not be.

Further, an employer can decline to hire an applicant who fails to disclose a conviction that has not been sealed or expunged if the applicant has certified that the information provided in the application is true.

3. Do not use or inquire into arrest history or sealed or expunged criminal history information.

An employer may not ask about an applicant or employee’s arrest record, so an employment application should state that the applicant should not disclose arrest history and sealed or expunged convictions in the application. However, an investigative report may provide arrest history. The fact of an arrest or sealed or expunged criminal history information may not be used to refuse to hire an applicant or as a basis to take any employment action. This rule recognizes that some groups are arrested more frequently than others.  

4. Other evidence besides arrest history that indicates criminal conduct may be considered.

An employer may refuse to hire or terminate an employee if it reasonably believes that the conduct underlying an arrest actually occurred. For example, an investigative report may contain an interview with a reference or neighbor who knows about the incident that led to an arrest. In some circumstances, such information may be so closely related to job responsibilities that an employer can consider it in a hiring decision.

5. Provide notice both before and after taking adverse action on the basis of a criminal background check.

Before declining to hire an applicant because of information contained in his or her criminal background check, the employer must provide the applicant with a copy of the background check and a statement of rights pursuant to the Fair Credit Reporting Act. After deciding not to hire an applicant, provide the applicant in writing with: 1) the contact information of the company supplying the background check, 2) a statement that the company supplying the report did not make the decision to take the unfavorable action and cannot give specific reasons for it, and 3) a notice of the right to dispute the accuracy or completeness of any information the investigative company furnished, and to get an additional free report from the company if the person asks for it within 60 days.

Consult your state’s laws for further details on using criminal history information in employment decisions.

Cary E. Donham is a shareholder and Rachel L. Schaller is an associate at Shefsky & Froelich in Chicago. Comment below or email  Follow Workforce on Twitter at @workforcenews.

Rachel L. Schaller is an attorney at Taft Stettinius & Hollister LLP.

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