Best Practices when Considering Criminal Records in Employment Decisions

Aurico believes that employers should take steps and review certain factors when considering criminal records in the hiring decision.  The EEOC developed new Criminal Guidance and released these to the public in 2012.  Below is a list of some of the best practices to consider when making hiring decisions based on criminal records:

Consider Nature and Gravity--of the Crime (was it a felony,  misdemeanor, traffic, etc.)  vs. Nature of the job position sought for example: 

1. Specific Job Duties
• Essential functions of the job
• Circumstances under which the job is performed
• Where the job is performed
2. Consider all evidence of the criminal record
3. Time since the crime occurred
4. Frequency of other crimes
5. Age at time of conviction
6. Employment History
7. Evidence of Rehabilitation

Employers also must protect their employees and clients from harm and from negligence and must create a balance between assuring a safe work environment for employees and clients, while assuring they are allowing for a case by case review of all background checks. 

Employers should not consider arrests, but could consider frequency of arrest records and the type of crimes, as well as pending cases.   Also we remind employers when making adverse hiring decisions based on part or whole of a background check, the employer must provide the applicant or employee with a copy of the background check report, a copy of the applicants “Summary of Rights” and information and contact information on the CRA to allow for a dispute process in accordance with the Fair Credit Reporting Act.  Aurico recommends that the employer wait 10 days between Pre-Adverse Action and Adverse Action to alloy the applicant/employer ample time to review and dispute any findings in the report.  Most Consumer Reporting Agencies like Aurico can administer this process on behalf of the employer.