The following checklist addresses issues that employers should consider and steps to take before looking into the criminal history of prospective employees.
Step 1: Determine whether a criminal background check is necessary.
- Is the employer subject to state, federal, or local regulations that require criminal background checks?
- Is the employer subject to state, federal, or local laws that limit criminal background checks?
- Does the position the applicant is seeking involve:
- contact with the public?
- working with vulnerable individuals?
- handling money?
- use of a dangerous instrument?
- work involving the public trust?
- Is a union involved? (A collective bargaining agreement may limit the use of criminal background checks.)
- Does a policy of conducting criminal background checks have the potential of discouraging qualified applicants or disproportionately affecting protected minority groups?
Step 2: Develop a process for conducting criminal background checks.
- Are applicants informed in writing that a criminal background check will be conducted?
- Are applicants asked to sign a consent or release in connection with criminal background checks?
- Are applicants informed that an arrest or a record of conviction will not necessarily result in denial of employment?
- Has the person who will conduct the check been trained as to the proper process; the agency or vendor to contact, fees to be paid, etc.?
Step 3: Implement the criminal background check process.
- In conducting the criminal background check, have the following criteria been met?
- Have notice and consent requirements been met?
- Is the check being conducted in connection with a position for which a criminal history check is appropriate?
- If the employer is covered by federal or state laws that require or limit criminal history checks, is the check being conducted in compliance with those laws, including relevant time frames?
- Is the process being conducted in a nondiscriminatory fashion (i.e., is the same procedure followed for all applicants for a given job or class of jobs)?
- Before using information obtained in the criminal background check to make an employment decision, have the following criteria been met?
- If the underlying criminal conduct from an arrest record is considered, does that underlying conduct make the person unfit for the position in question?
- If it appears that the applicant engaged in the conduct for which he or she was arrested, is that conduct recent and job-related?
- If conviction records are considered, does the number, nature and recentness of the convictions indicate that the applicant is unsuitable for the position?
- Can a “business necessity” for making the employment decision based on the conviction records be shown?
- Is the information obtained in the criminal background check treated as confidential?
- Is the information obtained in the criminal background check disclosed only on a need to-know basis?
Source: Employer’s Guide to Workplace Privacy, Amy L. Greenspan, Aspen Publishers.