You’ve narrowed your candidate pool down to a chosen few and are ready to check the backgrounds of your top candidates. Criminal background checks are in order. After all, you don’t want to hire a criminal, right? Seems simple, but like most issues in recruiting and hiring, the process can be complex with hidden pitfalls.
Lest you think that this problem doesn’t come up very often, take a look at the front page of the Wall Street Journal from August 19, 2014. The article reports that the FBI criminal database contains arrest records for 77.7 million Americans, an astounding 33% of adults.
Perhaps the most common pitfall for employers is not understanding the difference between an arrest and a conviction in making hiring decisions. Here is the difference according the Federal Equal Employment Opportunity Commission (EEOC):
Difference Between Arrest Records and Conviction Records
The fact that an individual was arrested is not proof that he engaged in criminal conduct. Therefore, an individual’s arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.
In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
Bottom line: You shouldn’t deny employment to a candidate based on an arrest record.
Even more so, you shouldn’t go Googling around looking at “mug shot sites” to find out if your potential new employee has ever been arrested. Conviction records are another matter. You generally can (whether or not you should is another matter) use criminal conviction records to deny employment. The most common exception to this is if you are engaging in pattern of discrimination against a protected category of people and using criminal conviction records for crimes unrelated to job duties to deny employment.
So what’s an employer to do? Here are some basic rules:
- Do NOT use arrest records to make hiring decisions.
- Do ask if candidates have been “convicted of a felony.”
- Do inform candidates that you will be doing pre-employment backgrounds and obtain the candidates’ written consent.
One thing that you can do to work around this process is ask candidates if there is anything you will find on their background check that they’d like to tell you before you run it. It is much easier to deny employment to someone who has lied in the current recruiting process than for any kind of past action.
The takeaway here is that you cannot use arrest records when hiring. You can use conviction records, but you cannot use them to discriminate. Essentially, if the conviction directly affects the potential hire’s ability to do the job, you can use it. If it is unrelated, you may be at risk.