Checking Employee Criminal Records? How Far Should You Go?

how far should you go?

Employers universally turn to background screening to inform their hiring decisions and meet their compliance obligations. In fact, a recent HR.com survey found 96% of employers conduct at least one type of pre-employment check. Screening runs the gamut from education and professional license verification, to drug testing, and DMV records checks. Among the most frequently requested employee background checks, are criminal records searches.

Given that nearly one in three U.S. adults has a criminal record, it’s very likely you will encounter candidates with criminal records in your hiring pool.

While there are pitfalls to avoid in all types of screenings, criminal background checks require special care when it comes to using the reported information properly in hiring decisions.

So, how far should you go when performing a criminal records search, and how should you consider that information once you have it?

We’ve outlined three important steps to take to ensure you’re evaluating the risks a candidate poses in a specific position, as well as the opportunities and skills they bring in a fair and equitable manner.

1. Consider the Roles and Risks of the Position

The place to start in defining a background screening policy is to look closely at the functions and associated risks of the position in question. Understanding the responsibilities and the risks inherent in each position will dictate what kind of information you need to know in order to hire wisely.

Here are some common questions to consider in framing your policy.

  • What specific skills and experience must the person in the position possess?
  • Do specific duties expose the position to specific risks, e.g., operating a motor vehicle?
  • How much does the person in the position deal with customers or other people? Is it in an observable setting or elsewhere?
  • Does the position perform without active supervision? With or without other employees?
  • To what extent does the position represent the organization to its various publics (brand or reputation)?
  • Does the position interact with vulnerable people, e.g., children, older adults?
  • How much access does the position have to cash? Other valuable items?
  • Does the position have access or control over financial records?
  • Is the position supervisory, and how much independent exercise of control does it have?
  • What is the estimated magnitude of the damage the person in the position could cause for the organization, from very little to existential?

This kind of analysis would be appropriate for any kind of background check. In the case of criminal history, you can easily see that a specific role might lead you to exclude an applicant depending on the nature of the crime. For example, in a position that requires frequent driving, any serious traffic accident could be a red flag you need to know about. Or, someone with a domestic assault conviction might not be appropriate for a position that takes care of vulnerable people.

On the other hand, if the applicant’s criminal history does not include behaviors that would be risky for the job in question, you could consider hiring them if they are otherwise qualified.

2. Use the 3 “Green Factors” to Evaluate the Results of a Criminal Background Check

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the proper use of arrest and conviction records in employment. In their Enforcement Guidance, the EEOC has defined three criteria, called “Green Factors,” that employers must assess when considering whether to exclude a candidate based on their criminal history.

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense or conduct and/or completion of the sentence
  • The nature of the job held or sought

A screen based on these criteria may lead you to conclude that an applicant’s criminal background is not sufficiently risky for the job in question and that they are otherwise qualified. However, if you do intend to take adverse action (i.e. not hire the person) based on what you find in the criminal records search, there is one more step you should take:  an individualized assessment.

3. Conduct an Individualized Assessment Before Taking Adverse Action

An individualized assessment is an exploration of whether there are factors that might mitigate a person’s past criminal behavior. The process requires communicating with the applicant as a part of the adverse action phase, letting them know they may be subject to exclusion due to specific criminal behavior and giving them a chance to rebut the conclusion.

Once again, the EEOC provides guidance on what factors may be considered in these assessments. They include but are not limited to:

  • The circumstances surrounding the offense
  • The number of offenses
  • Length or consistency of employment history before the offense
  • Subsequent rehabilitation efforts or education
  • Character or professional references

The individual may provide mitigating information that demonstrates the exclusion does not properly apply to them, or the hiring manager may draw the same initial conclusion, that the candidate should be excluded.

Bottom Line: Match the Check to the Roles of the Position and Follow EEOC Guidance

The end goal of any good hiring process is to collect the information you need to evaluate the risks a candidate poses in a specific position, as well as the opportunities and assets they bring.

We assume that past behavior is a predictor of future behavior. But it’s also important to treat all applicants fairly.

Following the three steps above can help you perform an appropriate screen and make the best hiring decision possible.

About Michael Gaul

Michael is a results-oriented marketing executive with over two decades of experience in employment screening, physical security, and business process management. Michael has deep experience in human capital risk management and a passion for educating business leaders and HR professionals on strategies that tangibly protect their interests. Michael serves on the Board of the Secure Cash and Transport Association (SCTA) and is a member of the Professional Background Screening Association (PBSA), and the American Society of Industrial Security (ASIS).
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