Hiring new personnel is a critically important job in any business or organization, and screening job candidates has become an increasingly significant step in the hiring process. As an employer, you should use employment background checks to your best advantage and take steps to avoid putting yourself at risk, particularly when it comes to an applicant's criminal history.
If you are considering someone based on listed skills, properly verifying employment, criminal history, education and licenses is a necessity. You can select a number of areas to review on a background check, depending on the relevance to the job the candidate is filling. These areas comprise a range of personal information about candidates, including:
You need to carefully consider how a criminal past may affect job outcomes. Most importantly, to ensure federal Equal Employment Opportunity Commission (EEOC) compliance, do not adopt a blanket policy regarding criminal history in your hiring. That is, eliminate statements in your policy and handbooks such as "our company does not hire felons" or "our company does not hire anyone with a criminal record."
You also need to consider any relevant state rules and review your current background check policies to ensure both state and federal compliance. In California, for example, employers with five or more employees cannot use criminal history information before an offer of employment is made. The offer should be accepted by the candidate and be contingent upon them successfully passing a background screening.
If you plan to take any adverse action based on the findings provided by the background check, some states, including California, require that the candidate be given at least five business days to submit a response to a preliminary decision to withdraw the offer of employment (which would be communicated via a written notice to the candidate). You must then consider the information provided by the candidate before making the final decision. If you do take adverse action, you must provide a written notice to the candidate.
Responsible hiring practices should incorporate the recommendations made by the 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. You need to follow these practical actions in considering the conviction records of job candidates, since failing to do so could put you at risk of discriminating against productive workers of any background.
The best way to steer clear of any interpretation of discrimination is to ensure that you can show that your background check policies and practices are job-related and consistent.
EEOC rules say that any personnel or employment records you make or keep (including all application forms, regardless of whether the candidate was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. The EEOC extends this requirement to two years for educational institutions and state and local governments.
The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000. If the candidate or employee files a charge of discrimination, you must maintain the records until the case is concluded.
If you'd like more information about background checks, reach out to our HR Solutions team.
