If you're not familiar with the "ban the box" concept, you might be soon. The box refers to a question on a job application that asks applicants if they have been convicted of a crime. In 14 states, it's now illegal to include that question. If your state is not one of those 14, it could be in the future. Many local governments have also adopted this concept.
This doesn't mean employers in states that have banned the question can't conduct background checks on employees prior to bringing them on board. Laws vary, but some require you to wait to get the background check until after you've interviewed a job candidate. In California and Hawaii, you may get a background check before making a conditional job offer. The goal is to prevent employers from jumping to conclusions about a job seeker's qualifications based on a criminal record, prior to having given the candidate a close look.
In no states are you prohibited from not hiring an individual with a criminal history. However, some states limit how far back in time you can search for a job candidate's possible criminal record (typically seven years).
Taking a fresh look at your hiring practices with respect to possible criminal histories requires examining three basic questions:
Unless you're running a daycare center, school or hospital, it's typically up to you to decide whether to get a background check before making a hiring decision. The answer to the first question often revolves around factors such as whether the job involves handling company funds or includes a lot of contact with the public. Or, it could center on whether the job is the type of work for which people with criminal histories are most likely to be hired for even with a past criminal conviction.
When you're looking for a background-checking service, it's important to understand what service you're purchasing. As with most things in life, it often comes down to this: you get what you pay for. The quality of a search depends on how many jurisdictions you want to cover, since no database covers all areas. Another key variable is how far back you want to search.
Keep in mind that federal court records might also need to be scoured for evidence of federal crimes, such as kidnapping, bank robbery, identity theft, and others.
Also, the reliability of commercial online background check databases varies. It's important, therefore, to verify incriminating information about a job candidate by going to the original source the data was pulled from. Alternatively, be sure that the background check service you are using gets its information from local court records, and not from another commercial service.
The U.S. Department of Justice's National Institute of Corrections (NIC) has issued a set of best practices for the use of criminal records in hiring. It urges employers not to use the price of a background check service as the "determining factor" in choosing it. The NIC also urges you to only use reporting agencies that demonstrate familiarity with the Fair Credit Reporting Act (the federal law governing background checks). They also should have a certification of reliability or accreditation from a reputable organization.
The trickiest part of the background check process is deciding whether to hire a job applicant with a criminal conviction. The answer, naturally, is "it depends." If you summarily reject anyone with a criminal conviction no matter what the circumstances, you could be violating the federal Civil Rights Act.
To help you avoid that fate, back in 2012 the Equal Employment Opportunity Commission (EEOC) issued an "enforcement guidance" document. The NIC's best practices guide incorporates the EEOC standards. "Proper use of criminal history data begins with looking at the risks that arise from the nature of the job," according to NIC. Employers should use what the NIC calls a "relevance screen" determining which crimes are pertinent to a job.
"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 no more likely [than the average person] to commit other offenses," the NIC asserts. Therefore, someone with a DUI conviction might be more likely to be in an auto accident, but not, for example, to embezzle funds.
The elapsed time element is also important to consider. "The risk that someone who has committed a crime will commit another offense decreases over time," states the NIC. Therefore, "consider the available evidence on recidivism rates before rejecting an applicant." Also, weigh the age the individual was when the crime was committed. Making serious errors in judgment is more common when young.
If you're able to keep an open mind about what you have learned through the background check process, discuss the criminal conviction with the job applicant. Try to determine the context of the crime, whether the applicant accepts responsibility for it.
Finally, if you're thinking about your legal exposure for criminal acts an employee with a criminal record might commit in the future — as you should — don't assume that you'll be excoriated. Rather, if you plan to go ahead and hire someone with a criminal past, carefully document your thought process and the evidence you used to reach your decision to move forward and hire the individual. That documentation, along with proper supervision of the employee and vigilance for any signs of trouble, can go a long way toward reducing or eliminating your liability.
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