By Les Rosen
President Employment Screening ResourcesSpecial Report:
Employers have become increasing aware of the importance of knowing if an applicant has a criminal record. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring where the hiring decision results in harm, and it could have been avoided by a simple criminal record check. Checking criminal records demonstrates Due Diligence and is also an important preventative measure to protect against workplace violence.
However, there are a number of limitations under California and Federal law concerning what an employer may legally ask about or discover concerning an applicant's or employee's criminal records. In fact, it can be a misdemeanor in California for an employer to knowingly violate some of these rules. Here are some of the limitations involved. Although not every state has rules as restrictive as California, employers in all states should be careful to make ensure that their applications are legally compliant.
An employer may NOT ask about arrests or detentions that did not result in a conviction.
An employer may only consider convictions or pending cases;
There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, cases where a person participated in pre-trial diversion, or certain minor marijuana convictions;
An employer should NOT automatically deny employment due to a criminal conviction, but should consider the nature of the offense, whether it is job related, when it occurred and what the person has done since.
ESR generally recommends the following language for California employers based upon language recommended in Human Resources publications. The language is as follows:
Have you ever been convicted for a crime? (Exclude convictions for marijuana-related offenses for personnel use more than two years old; convictions that have been sealed, expunged or legally eradicated, and misdemeanor convictions for which probation was completed and the case was dismissed)
Yes_____ No___
If yes, please briefly describe the nature of the crime(s), the date and place of conviction and the legal disposition of the case. This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.
Are you currently out on bail, the subject of a current warrant for arrest or released on your own recognizance pending trial? Yes ___ No ___
An alternative wording for the first question that avoids the problems associated with certain minor convictions is to use the following:
" Have you ever been convicted of a felony, or a misdemeanor involving any violent act, use or possession of a weapon or act of dishonesty for which the record has not been sealed or expunged?"
It is normally recommend that the application contain language that the conviction of a crime will not automatically result in a denial of employment. Automatic disqualification could be a violation of state and federal discrimination laws. However, an employer may deny employment if the employer can establish a business-related reason for the refusal to hire.
Where the situation becomes more complicated is where the offense is not clearly something that disqualifies an applicant, but still raises a red flag. For example, a Driving Under the Influence conviction for a non-driving position may still be considered serious, but perhaps not job related. However, some employers may have concerns about such a conviction. Generally, the resolution depends upon the totality of all the specific circumstance of the person and the job.
However, where an applicant has failed to honestly disclose the existence of a criminal conviction, then the employer’s concern may be the lack of honesty involved. Negative information honestly disclosed in an interview and explained may well have no effect, especially if the applicant otherwise has an excellent and verified work history. However, if the applicant is dishonest and the information is first revealed by a background check, then the failure to hire may be justified because of the false application or dishonesty in the interview. That is why it is important to have broad enough language in the application to cover all situations. Many applications only ask about felonies, even though misdemeanors can also be very serious and show conduct that would justly not hiring a person. In addition it is very important to make sure that the question asked is allowed by the law in your state. An employer never wants to ask a question that forces an applicant to reveal information that an applicant by law is entitled to reveal.
In addition, all applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application or the hiring process will result in disqualification, or termination of employment.
It is usually preferable to have completed the criminal check (as well as the entire background screening) before an employment offer is made or employment starts. An employer may offer or start employment conditioned on the background screening. However, once a person starts, an employer can be in a more difficult position in ending employment if the report is unsatisfactory to the employer. It is important to specify that the report must be satisfactory to the employer, so an employer is not put in a position of debating what constitutes a satisfactory report.
It is also important to understand that there is no national database that can be used to obtain criminal records. Background firms must physically check each courthouse where a person has lived, worked or studied that may contain a criminal record. That is why it is important to verify an applicant’s employment history to ensure there are no unexplained gaps in an applicant’s whereabouts. There have many instances of gaps in employment being related to criminal convictions.
Please note: This report is not intended and should not be taken as legal advice. It is based upon generally accepted human resources and industry practices. An employer should contact their own attorney or legal department to answer any legal questions.
Note: The various rules for California employers are found in the federal Fair Credit Reporting Act, the California Labor Code, the California Civil Code, the rules of the Fair Employment and Housing Commission contained in the California Code of Regulations, as well as federal case law interpreting equal employment opportunity laws and decisions by the federal Equal Employment Opportunity Commission.
For additional information, please contact Employment Screening Resources at 888.999.4474, or visit our web site at www.ESRcheck.com.