Investigations of Job Applicants: Considerations in Developing or Revising Criminal Background Check Policies

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March 30, 2016


If you currently use, or are considered implementing, a criminal background check policy to screen applicants or employees with certain criminal histories, you should re-evaluate your policy. Due to the EEOC’s position on this issue, there is no such thing as a “one-size fits all” or “model” criminal background policy suitable for all employers. Therefore, consider the following when reviewing and updating, or developing, your new policy.

1. Application: The EEOC recommends that employers not ask about convictions on job applications. This would represent a significant change for many employers. Therefore, careful consideration should be given as to whether or not to include this on applications. The decision will be depend on your company’s situation. If you currently have questions about convictions on your application and you decide you would like to keep such questions on your application, the application should also include language indicating that a conviction is not an automatic bar. The EEOC has recommended the following language: Answering “yes” to any of these questions does not constitute an
automatic bar to employment. The Company will consider the nature of the crime, its seriousness, the substantial relation to the position’s functions and qualifications, the number of occurrences, the applicant’s age at the time of the crime, the time elapsed since the crime, the applicant’s entire work and educational history, employment references and recommendations, and the business necessity of any exclusion when required by state, local, or federal law.

Additionally, consider having a blank for applicants to explain any convictions and why they should not make the applicant ineligible for employment. Finally, keep in mind that the EEOC is likely to take the position that you should ask only about convictions that you have determined to be job related and consistent with business necessity, as discussed below.

2. Criminal Background Reports: The Guidance is unclear whether the EEOC expects employers to request from a third-party provider only that criminal history information that is job related and consistent with business necessity. Depending on the practicality of limiting your request, and the provider’s ability to limit the records, you may want to consider only requesting information that meets this test. Not only will this practice serve as evidence that your hiring managers considered only relevant convictions, it will minimize the risk of human error when reviewing criminal background records by excluding irrelevant information.

3. Timing: Many employers use criminal background checks early in the application process to screen applicants who would not be qualified for the position based on the employer’s current background check policy. If practical, you may want to consider checking an applicant’s background after an offer of employment has been extended to reduce the number of applicants for whom you run background checks, and therefore reduce your potential liability. By interviewing the applicant, you may also be better able to demonstrate to the EEOC that you have made an individualized assessment as you will have more information about the candidate.

4. Arrests vs. Convictions: The use of arrest records is often problematic for employers and is discouraged by the EEOC. However, in some cases, you may determine there is a pending arrest that could impact the hiring decision. The EEOC indicates that if you consider arrest records for applicants or employees, you must perform an independent investigation of the facts surrounding the arrest. Using the fact of the arrest alone as the basis for an adverse action is unacceptable. You may permissibly use the conduct underlying the arrest, if your
investigation substantiates the alleged conduct, to take an adverse action.

5. Validation: One way the EEOC suggests to defend your criminal background check policy is to provide the Commission with validation data. Validation data is most commonly used in employment testing, where an employer can analyze an employment test to determine whether the results are consistent with actual performance or behaviors. However, if you have been using a criminal background policy to exclude applicants with convictions, you will not have a sample to assess the policy’s impact on job performance. Further, the Guidance
points out that there are very few studies demonstrating a relation between criminal history and subsequent performance or behavior. Without such data, it will be difficult to validate your policy.

6. Job Related and Consistent with Business Necessity: If you decide to revise your criminal background check policy, you must consider (for each position) the following criteria: (1) the nature and gravity of the offense or conduct, including the harm caused, the specific elements of the crime, and whether it was a felony or misdemeanor; (2) the time that has passed since the offense or conduct and/or
completion of the sentence; and (3) the nature of the job held or sought. These factors must be used to determine whether an exclusion based on a specific conviction is job related and consistent with business necessity. When considering these factors, you should review the job description and essential functions of each position for which you plan to use the policy. There may be certain jobs for which a felony theft conviction in the past five years is relevant, but not so for other positions.

7. Documenting Your Consideration: Document the reasons you considered certain convictions to be job related and consistent with business necessity for each position. This can be time-consuming and tedious (especially if your Company has a large number of different positions), but will strengthen your case if the EEOC decides to investigate your Company’s policy. The Guidance also recommends documenting any research or data upon which you relied in creating your policy. For instance, recidivism data can (and probably should) be used to determine how likely an ex-felon is to commit a similar crime five, ten, fifteen, or twenty years after his release from prison. Again, best practices include using such data to support your policy and any exclusions based on criminal history.

8. Individualized Assessments: The EEOC strongly recommends that employers provide an opportunity for applicants to demonstrate that the exclusion does not apply to their individual situation. Therefore, before excluding an applicant based on his criminal history, inform the applicant that he may be excluded and provide an opportunity for him to respond. You should also include a provision in your policy that requires an individualized assessment of applicants who present information regarding their criminal history (either on the application or otherwise). If an applicant does not present any information, you are not required to make an individualized assessment. Examples of information that should be considered include, but are not limited to:
a. The facts or circumstances surrounding the offense or conduct;
b. The number of offenses for which the individual was convicted;
c. Older age at the time of conviction, or release from prison;
d. Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known
incidents of criminal conduct;
e. The length and consistency of employment history before and after the offense or conduct;
f. Rehabilitation efforts, e.g., education/training;
g. Employment or character references and any other information regarding fitness for the particular position; and
h. Whether the individual is bonded under a federal, state, or local bonding program.
9. Avoiding Disparate Treatment: When making an individualized assessment, you should be careful to treat all applicants or employees the same, regardless of their race or national origin. If you make an exception for a White applicant based on post-sentence rehabilitation efforts, but fail to make an exception for a minority applicant who was similarly rehabilitated, you may be subject to a disparate treatment claim.

10. Blanket Policies are Likely Not Compliant: If your company currently has a blanket policy of excluding all applicants with a certain criminal history (i.e., all applicants with a felony conviction, or all applicants with a felony theft conviction in the last ten years), it is recommended that you revise your policy. The Commission notes that there may be limited situations where a narrowlytailored screen, without individualized assessment, may be lawful. However, in most cases, the use of individualized assessment is required under the Guidance.

11. Less Discriminatory Alternative: Even after considering only those convictions that are job related and consistent with business necessity and making an individualized assessment, the EEOC Guidance points out that employers may still be liable if there are available, less discriminatory alternatives to reach the same business objective. Considerations may include allowing a longer period of
time for an applicant to respond once they have been notified of the background check, or using a different policy or test to screen applicants.

12. Federal and State Laws and Regulations: There are certain federal laws that require employers to exclude certain applicants or employees with certain criminal histories. For instance, Section 19 of the Federal Deposit Insurance Act (FDIA) prohibits certain financial institutions from hiring applicants with specific criminal convictions. Compliance with federal law or regulations will be a valid defense to a Title VII case. However, if your policy excludes a larger class of applicants, for instance applicants with a felony theft conviction in the past twenty years where the federal law requires exclusion based on felony theft within ten years, your Company is liable for disparate impact to the extent your policy exceeds the federal law or regulation. In this example, your Company would be liable for disparate impact to applicants with felony theft convictions between ten and twenty years old. According to the EEOC, reliance upon state laws or regulations will not be a defense, as Title VII specifically preempts state laws and regulations.

13. Training Hiring Managers: You should train hiring managers on the basis for your criminal background policy, the factors considered in creating the policy, and how to perform and document an individualized assessment. Implementation of your policy, especially the individualized assessment component, should be as uniform as possible.

14. Credit Reports: The Guidance was limited to criminal background check policies and did not discuss the Commission’s position on credit reports. However, the EEOC is likely to employ the same job related and consistent with business necessity test in credit check cases. Therefore, if your Company currently screens applicants based on information in their credit reports, you may need to either discontinue the use of such policy or take an approach similar to that outlined above before using the policy further.

15. State Law Considerations: There may be state or local laws or regulations that relate to your use of background check policies or to specific language to be included on an employment application. Before implementing your revised policy, you should ensure compliance with such laws.


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