Since the revised EEOC guidance rules were published in 2012, there has been much speculation and frustration among employers as to the use of criminal history checks in the hiring process. These updated guidelines for background checks are especially challenging for small and mid-sized organizations, as they typically don’t have the legal resources readily available to help keep them compliant.
I’ve heard these complaints from clients over the past 18 months. At the same time, I’ve been fortunate enough to receive some tips from background check providers as to what employers can do to help avoid any undue exposure. Below are some of the things they’ve shared with me that I might recommend:
#1 – Have updated job descriptions
Everyone has heard this ad nauseum, but with these EEOC revisions, this is even more important than it has been in the past. And, if you are using an applicant tracking system such as HireCentric, creating updated job descriptions can be done quite efficiently through the use of job templates.
#2 – Be very careful in asking about criminal convictions on your employment application
While the finer points of this bear further discussion with a qualified Labor & Employment Law attorney, the key is to avoid any appearance that applicants having prior criminal convictions are excluded from serious consideration. Beyond this suggestion, many states have actually implemented legislation that makes it illegal to even ask this type of question on the employment application.
#3 – Consider only criminal convictions relevant to the job for which an applicant is applying
The fact that an applicant committed a crime is no longer considered sufficient reason to exclude that person from consideration for a position. In addition, you must be able to show that the crime for which that applicant was convicted creates risk for the organization if they are placed in a given position. An example…the fact that an applicant was convicted for shoplifting doesn’t pose any undue or unreasonable risk for the employer if the applicant is being hired to run a manufacturing machine. However, if that same applicant is being hired to manage company funds, most would agree that the shoplifting conviction is more relevant to that position and could create exposure for the employer.
#4 – Convictions must be recent enough to indicate significant risk
This is very subjective, but the intent here is to make sure that applicants who were convicted for offenses many years ago aren’t excluded from consideration unnecessarily. Another component to this is that applicant attempts at rehabilitation and recent job performance results should be considered. If someone was convicted of a crime 15-20 years ago, but has been employed and showed good performance in positions since then, that conviction likely shouldn’t be used as a way to disqualify the applicant from consideration.
#5 – You get what you pay for
There are a number of inexpensive ways to gather criminal history for applicants. While this isn’t meant to be a “plug” for any particular provider, this is an area where cutting corners can result in big penalties. Be sure to use a qualified provider of these services who can not only provide the conviction history, but who can also provide advice and counsel when needed.
#6 – Confirm convictions at the original source
This is an extension of the point above. Once a conviction shows up in any criminal history search, be sure your provider can locate and provide information from the original source…typically found at the county or municipal level. Since many of these government entities are not fully computerized, this often requires someone physically visiting a courthouse to manually locate and confirm the conviction information contained in the criminal history search.
#7 – Allow applicants to challenge any convictions found
By law, any conviction information found in a criminal history search must be disclosed to the applicant for potential appeal. It’s not uncommon for someone to have a conviction show on their record, when the actual person convicted of the offense is a different person. They may share the same name, but have completely different dates of birth or Social Security numbers. When using a provider, be sure they will either notify applicants on your behalf (ideally) or provide you the means to do so yourself (at a minimum).
By way of full disclosure, I am not an attorney and this is not meant to be legal advice. Instead, these are some effective tips that have been shared with me since the revised EEOC guidelines were released in 2012. I hope these are helpful for your organization, but I recommend speaking with an attorney or a representative from your criminal history provider for more details on this topic.
For more information about ExactHire’s applicant tracking software or potential background checking providers, please contact us today.