Handling Applicants with Criminal Records

Author: Bill Vogel, PHR
 VirtualHRPros.com 

​Companies need to eliminate policies that automatically disqualify applicants because of a criminal record disclosed on the application or discovered from a background check. The Equal Employment Opportunity or EEOC, which is the US federal agency that enforces civil rights laws in the workplace, provides guidance in this area. Companies need to apply the EEOC’s Consideration of Arrest and Conviction Records in Employment Decisions, before disqualifying a job applicant or retracting a job offer because of a criminal conviction. Failure to apply this test, which is also known as an Individualized Assessment, can result in legal claims filed against an employer such as charges of discrimination.
 
Also, keep in mind that a few states and cities have banned employers from asking job seekers to check a box and disclose criminal convictions on the application. This is commonly referred to as Ban-the-Box laws, which is a restriction that is gaining momentum in other states as well. In addition, earlier requirements forced companies to make a job offer before conducting a background check, which meant retracting job offers from unqualified applicants before they begin working.  Under either circumstance,  conducting an Individualized Assessment is a simple procedure that can prevent complicated legal problems. These steps include calling the applicant and discussing the following:
 

• Nature and Gravity of the Conviction
• The Time that has Passed Since the Conviction
• Job Relatedness to the Conviction

 
Nature and gravity refers to the seriousness of the conviction. For example, misdemeanor offenses are not as severe as felony offenses. Therefore, companies need to discuss the nature of the crime with the applicant to determine the seriousness of the felony, such as whether it involved threats, deception or intimidation. These raise red flags for most employers that justify disqualifying an applicant or retracting the job offer.
 
The time that has passed refers to how long ago the conviction occurred from the date of application. Let’s be clear on this one, the employment consideration clock starts on the date of the conviction, not the arrest date. For example, an applicant convicted of petty theft five years ago may not be a disqualification. As time goes by, former criminals are less likely to return to their criminal activities than the average person. This means that employers cannot rely on past behavior as an indicator of previous behavior.
 
Job relatedness refers to whether the criminal conviction has any relationship to the job. For example, an applicant convicted of petty theft, but is seeking a job as a heavy equipment operator should not be disqualified solely based on this criminal offense. On the other hand, a company should consider disqualifying this applicant for a job as a cashier.
 
For most private employers this test is relevant to the hiring process, but in California the Individualized Assessment is a legal requirement with several added steps. Employers must check all local laws to ensure fair and equal treatment of applicants and compliance with local laws. As a reminder most private employers cannot disqualify applicants because of an arrests.   
 
This blog only touches upon one of the many legal protections afforded applicants. As always, get help from a qualified HR Professional if you think your business is at risk, or help is needed developing policies, procedures, and training courses to assist with workplace compliance requirements.

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