Questions about Criminal Records of Job Applicants Become More Difficult for Employers to Ask

by Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employers have become increasingly aware of the importance of knowing if a job applicant has a criminal record since they have a legal duty to make reasonable inquiries about who they hire in order to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring if the hiring decision results in harm and 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.

One of the most effective tools an employer has is the use of an employment application form in the hiring process which enables employers to directly ask applicants if they have a criminal record. The advantage is that an employer can use a well worded application form to discourage applicants with something to hide while also encouraging applicants to be open and honest regarding questions about past criminal convictions.

However, the issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. Many states, counties, and local governments have joined the “ban the box” movement removing the “box” job applicants are asked to check next to the question asking about past criminal convictions.

In addition, more employers are facing lawsuits accusing them of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals with criminal records even when the criminal history has no bearing on the ability to perform their job. Due to these factors, questions about criminal records of job applicants are becoming much more difficult for employers to ask.

This is Trend #2 in Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Background Screening’ for 2011.

Recently filed class action lawsuits alleging that questions about criminal records for employment purposes may discriminate against African-Americans and Latinos since they have higher rates of incarceration underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process. To read the policy, visit: http://www.eeoc.gov/policy/docs/convict1.html.

The EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, states that “with respect to the manner in which a business necessity is established for denying an individual employment because of a conviction record” the EEOC’s underlying position is “that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” As a result, the EEOC holds “that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”

However, the EEOC’s revised requirements for establishing business necessity state that an employer “must show that it considered these three factors to determine whether its decision was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.”

In addition, the EEOC “continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.”

According to a July 2010 report from the National League of Cities (NLC) and National Employment Law Project (NELP) – “Cities Pave the Way: Promising Reentry Policies that Promote Local Hiring of People with Criminal Records” – an increasing number of cities have decided to “ban the box” and remove questions on job applications asking about criminal records. The report features 23 cities and counties that have chosen to “ban the box” on their job applications that asks about an applicant’s criminal record, and defer the criminal background check to the final stages of the hiring process. These cities include: Baltimore, MD, Boston, MA, Chicago, IL, Jacksonville, FL, Memphis, TN, Minneapolis/St. Paul, MN, Oakland, CA, San Francisco, CA, and Seattle, WA.

Some states are enacting “ban the box” laws for questions about criminal records of job applicants on employment applications. For example, an overhaul of the Massachusetts Criminal Offender Record Information (CORI) that took effect November 4, 2010 means employers in Massachusetts can no longer be able to ask about convictions on “initial” job applications because of new legislation that prohibits employers from asking questions on initial written job applications about criminal offender record information, which includes criminal charges, arrests, and incarceration.

With more cities, counties, and even states considering the adoption of the “ban the box” policy that removes questions regarding criminal records of job applicants from initial job applications, employers should revisit their policies on using criminal records during employment background checks to remain compliant with federal, state, and local laws.

Unfortunately, many employers use language in their applications that is either to narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in difficulty. Employment Screening Resources (ESR) – a leading provider of background checks accredited by National Association of Professional Background Screeners (NAPBS) – recommends employers should ensure that their job 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 and gravity of the offense, whether it is job related, and when it occurred.

It is also 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.

In addition, all employment applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application will result in disqualification or termination of employment. When an applicant fails to honestly disclose the existence of a criminal conviction, the employer may be concerned about the lack of honesty involved since negative information honestly disclosed in a job interview may have no effect if the applicant otherwise has an excellent work history.

For more information on what language to use in applications, read ‘Special Report: Criminal Records, Employment and Employment Applications’ by ESR founder and President Les Rosen at http://www.esrcheck.com/articles/crime_and_employment_application.php.

So can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes using a system to identify applicants with a criminal record?

The one thing that employers can be advised with some certainty is that any sort of automatic exclusion policy based upon a job applicant’s status as an ex-offender is likely to expose them to a federal or state EEOC issue. That is 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 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 and how much time has passed. This is why ESR advises clients to approach automated software processes dealing with past criminal convictions of applicants with extreme caution.

The idea behind these rules is that an applicant should not be the subject of prejudice based on their status 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 supervising a playground or an embezzler handling money, but only that while there may be a job opportunity for everyone, not everyone is entitled to every job. On the other hand, they need to be employed in an appropriate job, to avoid harm to the employer’s company, workers, or the public, and also to avoid lawsuits for negligent hiring.

There were numerous ESR News blogs in 2010 on the subject of criminal records of job applicants that may assist employers in navigating the issue of discrimination:

A series of recent surveys from the Society for Human Resource Management (SHRM) released revealed that approximately three out of four U.S. businesses – 73 percent – performed criminal background checks for their pre-employment screening programs, and more than 3 out of 4 candidates – 78 percent – underwent criminal background checks for positions with fiduciary and financial responsibility (handling cash, banking, and accounting).

For jobseekers with criminal pasts, a job search can be a frustrating because most employment applications will ask if they have a criminal record. Since job applicants with criminal records face greater challenges in finding employment – and since there are certain jobs where employers will justifiably not hire ex-offenders – ESR President Lester Rosen wrote the article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ to help applicants with criminal pasts get and keep work to develop a successful job history. To read the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php. For a Spanish version of the article, visit: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce-SPANISH.php.

The increased focus on whether credit reports and criminal records are discriminatory was Trend #1 in the Employment Screening Resources (ESR) “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.

Just how much information an employer should be able to learn about the criminal past of a job applicant has become an increasingly controversial subject in the current economic downturn, when finding work is tough enough even for a job seeker with a spotless criminal record. Employment Screening Resources (ESR) has long cautioned employers that any automatic disqualification rule can be discriminatory, and that employers must first consider if there is a business justification to deny employment, taking into account the nature and gravity of the crime, the nature of the job, and the age of the offense.

In other words, employers cannot simply follow a “No one with a criminal record need apply” strategy that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a job-related reason why that person is unfit for that job. As a general rule, ESR believes it is a best practice for employers to have written policies on important issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

For more information on how best to avoid discrimination against employees and job applicants while conducting employment screening, visit http://www.ESRcheck.com or http://www.esrcheck.com/wordpress/tag/criminal-records/.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Second of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

Sources:
http://www.eeoc.gov/policy/docs/convict1.html