Advice on Criminal Background Checks

Criminal background checks are an important preemployment screen for many organizations. And rightfully so. If I own a company that sends service workers to other people's homes or businesses, I don't want to send someone I wouldn't want in my own home or business and expose my customers to potential risks they wouldn't find acceptable.

But this once commonplace practice has come under scrutiny in recent years. And the criticisms do have merit. Some segments of the population are convicted of crimes at a much higher rate than other segments, and critics suggest that requiring a criminal background check and screening out candidates for infractions that are not really job related may be a type of discrimination.

Employers should evaluate each job on its own merits. Certainly rejecting a candidate for a bookkeeper position who has a felony fraud conviction is hard to debate. But bouncing a candidate for a scaffolding erector position for a non-violent misdemeanor five years ago might be considered overzealous. 

The key for employers is avoid having a blanket policy regarding what constitutes a passing or failing criminal background screen. Instead, set criteria for each job title or job grouping separately. For example, the company may set higher standards for candidates who will be driving company vehicles than those who will always be passengers or those working on the plant floor. The company might have a different set of standards for employees who will have access to cash or the company's books than for administrative roles that have no such access.

And finally, conduct the background screen post-offer! There are several advantages of conducting the screens after an offer has been made (contingent upon meeting the screening standards) versus conducting the screen in advance of the offer:

1. It's less expensive - why pay for a screen if you haven't come to financial terms with the candidate. Furthermore, the Fair Credit Reporting Act requires employers send a specific kind of notice to candidates who are rejected on the basis of a criminal background or credit check. Run the screen on several finalists, and you may have to send multiple notices out. 

2. It provides a much stronger defense against discrimination. If you have a signed offer letter from a minority candidate conditional upon meeting the company's standards, and those standards are reasonable, it's hard for the EEOC to conclude that your organization utilizes discriminatory hiring practices. If you conduct the screen pre-offer, you can't prove that you would have hired the minority even if the screen results were acceptable. 

3. Some states don't allow pre-offer criminal background screens (it is legal in NC, SC and VA).  If your organization operates in multiple states, make sure you know the law in each state.

If you really want to be an early adopter and reduce your risk with the EEOC even further, consider revising your employment application to comply with the national "ban the box" trend. This means you don't ask candidates to list any convictions on the application (thereby demonstrating that you don't reject applicants on the basis of criminal background, alone). Instead, have a statement on the application that tells applicants that the company conducts post-offer criminal background screens and that criteria varies by position.