On May 21, 2013, the Lawyers’ Committee for Civil Rights Under Law announced a publication, “Best Practice Standards: The Proper Use of Criminal Records in Hiring.” The following is an excerpt from the publication, which was developed by a working group of experts from the Legal Action Center, the Lawyers’ Committee for Civil Rights Under Law, the National Workrights Institute in consultation with private sector consultants from the Employment Screening Resources and CARCO Group, Incorporated:
Hiring new employees is a critically important function in any business, government agency, or non-profit organization. Every hiring decision represents a major investment that employers must make with limited information. Checking criminal history is just a small part of this process, which may also include verifying education, prior employment and other reference information. The Best Practice Standards in this document will help employers properly weigh adverse personal history to find those applicants who will contribute most to the productivity of the organization.
Responsible hiring practices should incorporate the recommendations made by the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal employment discrimination laws, in its 2012 “Enforcement Guidance on the Use of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.” The Best Practice Standards presented here set out concrete, practical procedures that will help employers make hiring decisions that:
• Comply with the EEOC Guidance and limit liability under Title VII of the Civil Rights Act and state and local anti-discrimination laws;
• Comply with the Fair Credit Reporting Act (FCRA); and
• Minimize the risk of liability from hiring an unfit employee.
As the EEOC Guidance pointed out, proper use of criminal history data begins with looking at the risks that arise from the nature of the job. Starting with the job description for the position, the Standards give examples of questions about risks associated with the job that will identify the kinds of prior convictions that are relevant. This is the first determination the employer makes in developing what is called a “Relevance Screen,” which lays out which convictions should be considered in the hiring process.
The second determination for the Relevance Screen is the length of time to consider convictions, referred to in these Standards as the “look-back” period. Some states have statutes that limit this period for many jobs. Where no state limitation applies, if research data is available to guide the employer on how long to consider convictions, the EEOC Guidance recommends using that research. The employer must make an informed judgment about how long to consider convictions.
When applying the Relevance Screen, only convictions and pending prosecutions should be considered. Arrests that are not subject to active prosecution should not be considered. In states that do not allow consideration of any arrests whatsoever, the state law must be followed.
When a criminal background check is necessary, the employer should engage the services of an experienced Consumer Reporting Agency (CRA). The employer should select the CRA based on its knowledge, expertise and thoroughness, not primarily on low cost. The employer should insist that the CRA (1) be sure that all information is confirmed from the original source, not from private industry databases; (2) report convictions only when full name and all other available identifiers match; (3) be sure the disposition is current; and (4) report all charges related to a single incident as a single entry.
While there are exceptions, job postings or announcements generally should not refer to criminal background checks, and the application form should not require candidates to list convictions. Many large organizations, including most federal government agencies, do not inquire about criminal history at the interview, but defer the criminal background check until after the employer has decided to make an offer of employment. Other employers may inquire about criminal history at the interview, which is consistent with these Standards as long as the inquiry is limited to convictions of the type and within the period identified by the Relevance Screen.
If the leading candidate for the job has no convictions described by the types and dates determined for the Relevance Screen, the hiring decision is complete. But the leading candidate may have a conviction within the parameters of the Relevance Screen. Then the employer needs to assure that the final hiring decision is made by a manager who can balance the competing factors in order to give no more weight to the conviction than is truly appropriate for the risk. This may be the manager who supervises the position, or it may have to be a member of senior management.
In making the final decision, the manager should follow the recommendation of the EEOC Guidance to consider all evidence relevant to rehabilitation and low risk of future misconduct. A list of many of the types of relevant evidence is included in Appendix A of the Standards.
Employers must remember that millions of workers with prior convictions have turned their lives around and become productive members of society. These workers are disproportionately from minority communities. Employers need to follow sensible procedures in considering the past conviction records of job applicants, since failing to do so will both hurt the employer’s interests and risk discriminating against productive workers of every heritage. Following the Best Practice Standards set forth here will enable employers to protect their interests and the interests of those they serve, without unduly burdening applicants for past mistakes.
- Best practices
1. CONSIDER ONLY CONVICTIONS AND PENDING PROSECUTIONS
The fact that someone has been charged with a crime should not disqualify them for a job if they were not convicted. If a person is being prosecuted for an offense that is relevant to a job for which they have applied, an employer may consider it.
2. CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION
A person who has committed an illegal act in the past may be more likely than the average person to commit a similar act in the future, but they are no more likely to commit other offenses. A person who has been convicted of DUI may put the public at risk in a job that involves driving, but not in other jobs.
3. CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK
The risk that someone who has been convicted of a crime will commit another offense decreases over time. Employers should consider the available evidence on recidivism rates before rejecting an applicant.
4. DO NOT ASK ABOUT CRIMINAL RECORDS ON APPLICATION FORMS
Delaying learning about an applicant’s criminal record until the interview or later enables the employer to make more informed hiring decisions.
5. USE A QUALIFIED CRA TO CONDUCT RECORD CHECKS
All consumer reporting agencies are not equal. Employers should consider the quality of CRAs’ procedures and results and not decide which one to use based solely upon cost.
6. CRAS SHOULD REPORT ONLY CONVICTIONS THAT ARE RELEVANT AND RECENT
Employers should determine in advance the convictions that it considers relevant for specific jobs and the time period during which they are relevant. These determinations should be provided to the CRA with instruction to report only convictions that meet these criteria.
7. REPORT CONVICTIONS ONLY WHEN FULL NAME AND ONE OTHER IDENTIFIER MATCH
In a country of over 300 million people, many people have the same first and last name. A conviction should only be reported to an employer when the full name (including middle name where available) and at least one other identified match.
8. CONFIRM ALL INFORMATION FROM ONLINE DATABASES WITH ORIGINAL SOURCE
Online databases are not always accurate or up to date. All information from such databases should be confirmed with the original source.
9. GET CURRENT DISPOSITION OF ALL RELEVANT INFORMATION
All information obtained from any source should be updated to ensure that it is current.
10. PROVIDE APPLICANT THE OPPORTUNITY TO CHALLENGE THE CRA’S REPORT
Whether or not required to do so by FCRA, employers should provide applicants with a prompt and convenient method of challenging information in the CRA’s report.
11. ALL CHARGES RELATED TO A SINGLE INCIDENT SHOULD BE REPORTED AS A SINGLE ENTRY
Reporting information relating to a single incident in different sections of a report can create the impression that multiple incidents took place. All information related to a single incident should be reported in a single entry.
12. CONSIDER EVIDENCE OF REHABILITATION
People change over time. Some people with criminal convictions change their lives and become good citizens who can be good employees. Applicants with relevant convictions recent enough to be of concern should not automatically be rejected. Instead, he or she should be given the opportunity to present evidence of rehabilitation which the employer should carefully consider before making a decision.
13. MINIMIZE CONFLICT OF INTEREST BY DECISION MAKERS
Employees making hiring decisions regarding applicants with criminal records are in a difficult situation. If the company hires an applicant with a record who later commits another offense, the employee who hired them may be blamed. Hiring decisions should be made by an employee (or employees) who are in the best position to make an objective decision.
14. TRAIN HUMAN RESOURCES STAFF
Hiring decisions regarding applicants with criminal records require an understanding of the practical steps an employer should take to comply with federal and state law on background checks and to comply with federal, state and local anti-discrimination laws, without exposing the employer to unreasonable risks. Human resources employees should be thoroughly trained on these subjects.
15. HAVE A DIVERSITY PROGRAM
One of the benefits of making sound decisions regarding applicants with criminal records is a more diverse workforce. Having a diversity program helps an employer determine how well it is making such decisions.
The full text of the publication may be found at the following website address: