It’s that alarming moment when the background check reveals that your top job candidate has a criminal record. Is this a deal breaker? What should you do? Believe it or not, a criminal record does not mean that your candidate is over and done with.
In fact, there are five key steps that will help you determine whether or not your candidate should be disqualified and, at the same time, how you can stay compliant with state and federal screening laws.
1. Legal Considerations
As the country continues to pull itself out of an economic slump, the competition for jobs remains fierce and candidates are more likely to seek legal recourse when they are not hired. If your candidate has a criminal background, the first step is to educate yourself on the top legal issues that could land you in court. Your focus should be on compliance with the Fair Credit Reporting Act (FCRA) and anti-discrimination laws.
In addition, the Equal Employment Opportunity Commission (EEOC) published updated guidance on employers’ use of criminal background checks in April of 2012 to address its concern that criminal background checks have an unintended discriminatory impact on particular minority groups. When a background check reveals that a candidate has a record, employers should review the EEOC guidance.
Other legal considerations include ban-the-box ordinances and state laws, which may restrict the use of criminal history information until later in the hiring process—usually after the interview stage.
2. Hiring Matrix
Many companies have adopted background screening policies that define the types of crimes that may disqualify candidates from certain positions.There is no set formula for creating a hiring matrix. As a rule of thumb, qualifications based on criminal history should be position-specific, should not include “blanket policies,” and should give the applicant an opportunity to provide additional information or question the decision. Whatever the format, a hiring matrix, or decision matrix serves as a set of guidelines to be applied consistently and creates a clear standard against which every applicant is adjudicated or qualified.
3. Individualized Assessments
The EEOC guidance on the use of criminal records created a de facto new requirement that was introduced in 2012. This new requirement addresses the potentially discriminatory impact of criminal records to the hiring process; the EEOC wants employers to conduct “individualized assessments” before making final decisions based on criminal records.
Some factors employers should consider during an individualized assessment:
- Additional facts or circumstances surrounding the offense.
- Older age at the time of the offense or the time of release.
- Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct.
- Employment history before and after the offense.
- Rehabilitation efforts (e.g., education/training).
- Employment or character references along with any other information regarding fitness for the particular position.
4. Adverse Action
Adverse action is a process required by the FCRA when you find a criminal record (or any other adverse background information) that will disqualify a candidate for employment. Under the FCRA, employers have to give applicants notice before a hiring decision is made informing them that they might be rejected based on the results of a background check. Using this process, the applicant has an opportunity to see the background report, challenge any inaccuracies in the report, and clear any negative information that is disqualifying him or her from the job. The FCRA also requires a second notice, after a final decision has been made not to hire.
5. Dispute Process
The final step to consider when your applicant has a criminal record is providing the candidate an opportunity to dispute the findings of the background check. The law gives candidates the right to contact the background screening company directly to dispute the accuracy of a background report. If that happens, the background screening company will notify the candidate that a dispute is pending. Some companies delay a final decision until the dispute is resolved.