Background checks: Criminal history

For many employers, a criminal conviction on a job applicant’s record stands out as the ultimate red flag. After all, if the person has peddled drugs, stolen goods or assaulted somebody, aren’t you taking a huge risk employing them?

Well, maybe. But as with credit history and employment status, it’s not prudent to always use a criminal conviction as a knock-out factor for an applicant.

The EEOC points out that African-Americans and Hispanics are convicted at a rate disproportionately greater than their representation in the population. To the EEOC, this means employment decisions based on criminal records have a disparate impact on blacks and Hispanics. The EEOC has filed at least two lawsuits against employers over their policies on criminal convictions.

So what’s the key to a policy that both protects you from unsuitable applicants and keeps you on the right side of discrimination law?

In a word, flexibility. Blanket policies barring applicants with any kind of criminal record are exactly what’s most likely to cause trouble.

The EEOC says you may be able to prove that refusing to hire an applicant with a criminal record was a business necessity, but only if you take three factors into account:

• the nature of the offense
• the type of job involved, and
• the length of time that has passed since the conviction.

So, for example, it may be okay to reject an applicant for a job delivering to customers’ homes who had an assault conviction two years ago, but not to reject one who eight years ago did six months for smoking crack, and who would be working under close supervision.

Note: Remember that many states have their own laws regulating the use of criminal records in employment decisions.