Background checks into arrest and conviction records must follow strict steps, so employers know when and where it's legal to request details of such actions, and where they must draw the legal line. Sample hiring policies can help avoid legal liability when conviction records are in question.
1. During the hiring process, can an employer inquire about an applicant's arrest record?
The general but ambiguous rule of thumb, as provided by federal equal employment opportunity law, is that an employer may ask about an applicant's convictions, but not about arrests that did not result in convictions. There is nothing in the law that prevents you from physically checking arrest records, but a number of courts and the EEOC have consistently ruled it is illegal to have a blanket policy barring employment for those who have been previously arrested. Some states have also passed laws restricting the use of arrest and misdemeanor records.2. Can an employer deny employment to an applicant with a conviction record?
Generally, courts grant employers clearance to deny employment to applicants convicted of a felony. But employers should still be wary in making this decision. In evaluating felony convictions in these circumstances, the EEOC recommends that you consider these five questions.
How long ago did the conviction take place?
What were the circumstances of the event?
How many convictions were there?
What is the applicant's employment record since the conviction?
What rehabilitation has the applicant been through?
Answers to these questions will help you evaluate whether the nature of the felony committed conflicts with your business objectives.
3. Where is it appropriate to request conviction details — on the application, at the interview, or both?
Your best bet, perhaps, is not to ask about such convictions on an application, but to indicate for applicant approval that a criminalof all candidates will be conducted as part of the employment process. Most states furnish such records at no or low cost. The report, in most cases, will indicate arrests and convictions of any type, telling you a lot about an applicant without having to ask.
4. If an applicant volunteers that he/she is on a prison work release program, can the employer use this as the sole reason for denying employment?
On one hand, applicants with conviction records must be protected from illegal bias; however, employers may also be held liable for negligent hiring. Although employers have more latitude in inquiring about convictions than in inquiring about arrests that did not lead to convictions, the EEOC recommends that conviction records should not automatically bar applicants from employment, especially if the offense is not relevant to job performance.
Ask yourself: Would the applicant be placed in a position where he/she may commit a crime and/or expose other employees or members of the public to a risk of harm or injury from his/her conduct? For example, you would have an easier time defending a decision to deny an applicant convicted of embezzlement a position involving fiduciary responsibility; it might not be so easy if he/she were applying for a data processing position. You should also consider the circumstances of the offense, what rehabilitation the applicant has gone through, and his/her employment record since the conviction.
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