Posted by: Professionals In Human Resources Association (PIHRA) | December 2, 2010

Can Employers Automatically Exclude Job Applicants with Past Criminal Records Found During Background Checks?

By Lester Rosen, President of Employment Screening Resources (ESR)

Can employers automatically exclude job applicants with past criminal records found during background checks?

The answer may be surprising since the one thing that employers can be advised with some certainty is that any policy of “automatic” exclusion based upon a person’s criminal past is likely to expose them to federal or state Equal Employment Opportunity Commission (EEOC) issues. That is the reason why nearly every employment application not only asks about past criminal records but also has a disclaimer that a criminal record will not be used automatically. The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy of “automatic” exclusion does not allow consideration of the individual, taking into account factors such as the nature and gravity of the past offense, the relevance to the job the person is applying for, and how much time has passed since the offense.

The idea is that applicants should not be the subject of prejudice based on their status as past offenders as opposed to who they are as a person. After all, the root of the word prejudice is to “pre-judge.” Of course, that does not mean a sex offender should be a playground supervisor or an embezzler handle money, but the bottom line is that there is a job for everyone, though not everyone is entitled to every job. Society cannot afford to build more prisons than schools or hospitals since it costs over $30,000 a year to incarcerate a person, and if that person cannot find work after leaving prison then there is a high likelihood of recidivism and even more costs to society.

On the other hand, applicants with criminal pasts need employment in appropriate jobs to avoid harming co-workers or the public and avoiding lawsuits for negligent hiring. There is no perfect solution, but the process is critical and should allow for individual consideration of applicants on their merits as they relate to a job.  However, if applicants lie on their job applications and were dishonest about past criminal histories, then employers may rightly be concerned about the lack of honesty especially if the application clearly indicated that any material omission or misinformation would be grounds to terminate the hiring process or employment, no matter when discovered.

In addition, the issue of whether employers can even use a job application in order to ask about a job applicant’s criminal record is becoming extremely complicated. For example, California Labor Code Section 432.7 states that “no employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction.” As defined in the code, a conviction “shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court.” However, the code also states that “nothing shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.”

One of the major new trends in the pre-employment background screening industry is the increased scrutiny on whether the use of criminal records during background checks is discriminatory. The EEOC filed a lawsuit in October 2009 against a firm that allegedly used criminal records to unfairly discriminate against black and Hispanic job applicants, while the state of New York passed a law in 2009 requiring employers to review a list of factors related to a past crimes to ensure that they would not automatically reject applicants with criminal records without considering the merits of those individuals. Starting November 4, 2010, new legislation in Massachusetts prohibits employers from asking questions on initial written job applications about criminal offender record information of job applicants. Employers who continue to ask questions on initial written applications about felony or misdemeanor convictions after that date may be subject to liability under the new law. In addition, many states and a number of cities have joined in adopting a “ban the box” approach prohibiting questions about past criminal records on initial employment applications so as not to deter ex-offenders from applying for work.

However, without exercising due diligence, employers can sued for negligent hiring, suffer financial loss, or put public safety at risk if “red flags” are not located. The bottom line is that employers need to realize effective background screening occurs at the intersection of security and privacy, and society is constantly defining and testing these two boundaries.

Attorney Lester Rosen is President of Employment Screening Resources (ESR) and author of “The Safe Hiring Manual.”  ESR is accredited by the National Association of Professional Background Screeners (NAPBS). Visit ESR at http://www.ESRcheck.com.

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Responses

  1. My comment is this I understand some people may never change but if it intensional with no remorse and no fear of the law on this earth and or in heaven then yes by all mean don’t hire til there is some change of heart, ways. So if so has show changes, and remorsel as we do say freedom of speech we all have and as we say do not discrimate cause of color or race or sex including be gay right (and are we withoout sin let us stone the whole world ha! wrong we all have and most stil is and will before we leave this earth do some type of wrong wheather willingful or unwilling verbal or non i pray we don’t or i but you but God of the higher power know. and Jesus the christ the perfect i believe then we. surely me . but how long shall we keep a human down if they are trying to change and want to work for what they have need or desire for. Did you die and rose againg and creat this world and all in it.
    i say all of us deserve a second or third chance at trying to get it togerther. lest we come short and fall. let at yourself in the mirror if you all that it’s time for you to ascend to heaven. don’t you think. i work faithfully without pay to get on my feet and pay off my debts to those i owe but i either not pretty enoungh or smarth enoungh or my credit is to poor i vote i have served over 25 year volunteering shound not i be worthy of a salary . And those i work to help is low income people of different race’s and age’s event the underage 11-15 desreve to work on a grant on the job trainging program without having alot of ability an some with still already.why stop them I feel this will decrease doubt and low esteem in people and crime from be coming unintensional don’t you? Can you serve me some leads to jobs that can help a lot that i work with with this issues or a race or religion or a low skill or experince area. i love if you do and if you don’t all will have answer God for our actions i feel sooner or later. belive or not i feel. (713)((223-2122 of Resident council office as an Vice president of council /management of a community /resource center and referal service for community

  2. I know it long but that my opioion and thought from heart at this time . but still if can not receive then receive this yes some do desreve and second or third chance especially if they are trying to show that they are ashame and are doing so by volunteering and applying for work monthly it is written all have sin he whom without let him cast the stone, and we don’t know when or how we might fall or do tommorrow cause it not promise but to the faithful just do have how. may God bless you for reading this and if you have Job lead can you share the cause i work as non pay Vice president/christian of an Community/resource center I see and assist people with these issue most all the time. with good people trying to get back up.

  3. I say yes people desire 2nd or 3rd chance if they are showing shame of it and showing they are trying to work or give back. I work volunteer as an non payed employee asisting people all the time with fincianal ,job food,housingand other issues, I council and pray for them so can you share some insight and job lead soon as possible that can help these people get work Godbless you and Thank you. (713-223-2122 P.S. my heart hurt when other’s do.

  4. oh and don’t pass those that can be a great high risk in same field of work if not sure if change or not stamble or not sure of stil give a job but in another area a murder put in a grave ceremerty or at a monutery and a thife as trash collector if his hands to hot.


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