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Criminal Background Checks: What's Legal for Employers?
In the hiring process, many employers conduct reference and background checks to make sure they really know the person they're bringing into their organization. But when it comes to a candidate's criminal past, is it legal to pry, and consequently deny the person employment because of it?
The answer depends on where the interview takes place, because laws vary. It also depends on when during the application process it is asked, who is asking, who is being asked and what will be done with the information.
"This is a very technical world," said Elan Parra, managing director of New York City-based investigative firm Lemire. "There are a lot of nuances."
As far as the U.S. Equal Employment Opportunity Commission (EEOC) is concerned, employers can ask job applicants about criminal background — but that doesn't mean you get a free pass to turn down the applicant.
Carol Miaskoff, assistant legal counsel with the EEOC in Washington, D.C., said what matters is how you use the information you receive. For example, if an employer finds out about a conviction and uses it to turn away an African-American candidate but hires a white candidate with the same or very similar record, it would be considered discrimination, according to the EEOC.
Even if a blanket prohibition against hiring people with criminal convictions is applied the same way, regardless of race, that prohibition may still run afoul of the law if it excludes more members of protected minorities, Miaskoff said. Last year, automaker BMW paid $1.6 million to settle an EEOC case involving similar allegations against a North Carolina supplier.
Employers generally can't use blanket prohibitions at all if they are not relevant to the work.
"They should be focused and they should be thoughtful in terms of what kind of criminal record and for how long," Miaskoff said. "Is it really relevant to your job selection?"
The EEOC also specifies that an employer can't use an arrest alone to justify not hiring someone, because an arrest is not a conviction.
Although the EEOC seems like the most likely federal agency to be interested in this, the Federal Trade Commission comes into play even earlier in the process via the Fair Credit Reporting Act. FCRA restricts what employers can do to research candidates using third-party consumer reports, including criminal background checks as well as credit histories.
First, FCRA requires that employers get the applicant's written permission to do a background check, which has to be a completely separate piece of paper from the application.
"The applicant has to be put on notice that there's going to be a report requested and that report has to be authorized separately," Parra said.
If anything questionable turns up on the report, the employer must give the applicant a copy and tell him or her about FCRA protections before taking action based on the report. Finally, the employer must send the applicant notice if it decides not to hire or promote because of the report.
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