Last Updated on August 27, 2024

In today’s hiring landscape, background checks are a crucial component of the recruitment and hiring processes. However, when an applicant or new hire has a conviction, it’s essential for employers to handle the situation with care to ensure compliance with legal standards and avoid potential pitfalls. This blog post outlines key considerations for employers to stay compliant when dealing with convictions during background checks.

Understand the Legal Framework

Federal and State Regulations

Employers must navigate a complex web of federal, state and city regulations when it comes to handling criminal convictions. Employers should be up-to-date and knowledgeable about regulations at all three levels. The Fair Credit Reporting Act (FCRA) governs the use of background checks, while individual states have their own laws that may further restrict or dictate how criminal records should be handled.

Ban-the-Box Laws and Fair Chance Act

Many states and local jurisdictions have enacted “ban-the-box” laws that prohibit employers from asking about criminal history on initial job applications. According to William (Bill) Simmons, Shareholder and Co-Chair of the Background Checks Practice Group at Littler Mendelson P.C., the law’s initial trend was to help applicants who previously had criminal records get the “box” off the job application. Applicants would have to check a box if they did have a criminal record.

Simmons says that aside from the Ban-the-Box Laws, the newer trend in hiring those with previous criminal convictions is known as the Fair Chance Act. This act, like the Ban-the-Box Laws, does not ask the “question at the application phase about criminal records anymore. But now, (they) want you to have a very robust procedure for how you look at applicants who have criminal records, a lot more substantively.”

Follow Fair Hiring Practices

Individual Assessment

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that is charged with enforcing discrimination laws across the country, issued guidance for employers to conduct an individualized assessment of the candidate or employee’s criminal history. This involves considering factors such as the nature of the offense, the length of time since the conviction, and any evidence of rehabilitation. Evaluate the time that has passed since the conviction and any evidence of rehabilitation or changes in behavior. The assessment should be fair and unbiased, avoiding blanket exclusions based on criminal history alone.

Provide a Chance for Explanation of Conviction

Before making a final decision, give the candidate or employee an opportunity to explain their conviction. This can provide valuable context and demonstrate whether they have taken steps to address past behavior. Ensure that the process is transparent and respectful. Convictions from many years ago may be less relevant, especially if the individual has demonstrated a commitment to personal and professional growth since then.

Simmons mentioned that in accordance with the Fair Chance Act, applicants must have a chance to “submit rehabilitating or mitigating information. Basically, yes, my record is mine. It is accurate. But, let me tell you more to the story; whether it’s a story about what I’ve done since, or a story about what happened.” However, because the background check company does not make decisions about employment, the proper place to direct those inquiries, for the most part… is back with the employer.”

Comply with Adverse Action Requirements

Pre-Adverse Action Notification

If a decision to deny employment or take adverse action is based on the criminal record, employers must comply with FCRA requirements by providing a pre-adverse action notice. This notice informs the candidate of the potential decision and provides a copy of the background check report, giving them a chance to review and dispute any inaccuracies.

Adverse Action Notice

If the decision to not hire is finalized, employers must issue an adverse action notice. This notice must include the reason for the decision, information on how to obtain a copy of the report, and details on how to dispute inaccuracies. Proper documentation and adherence to these requirements help protect against legal challenges.

Regularly Review Policies and Procedures

Stay Updated on Legal Changes

Laws and regulations regarding criminal background checks and convictions are subject to change. Regularly review and update your policies and procedures to ensure compliance with current legal standards. Consulting with legal experts or HR professionals can help keep your practices aligned with the latest requirements.

Training for HR Personnel

Provide training for HR personnel and hiring managers on how to handle criminal records appropriately. This ensures that all staff involved in the hiring process understand the legal requirements and best practices for managing background checks and convictions.

MyHRConcierge and MyHRScreens Helps Your Organization Stay Compliant When Hiring

Handling criminal convictions during background checks requires a thorough understanding of legal requirements, a fair and individualized approach, and a commitment to confidentiality and non-discrimination. By following these guidelines, employers can navigate this complex aspect of hiring while ensuring compliance and fostering a fair workplace.

MyHRConcierge and MyHRScreens offer invaluable support in maintaining compliance throughout the screening process and when navigating background check results before hiring. MyHRConcierge provides expert guidance on adherence to ever-evolving employment laws, ensuring that your hiring practices meet legal standards and reduce risk. Meanwhile, MyHRScreens delivers comprehensive background screening services to help you make informed and compliant hiring decisions. Together, this partnership streamlines your HR operations, helps to mitigate legal risks while ensuring a fair, transparent hiring process. 

To learn more about what MyHRConcierge and MyHRScreens can do for your company, contact MyHRScreens today at 866-899-8970 ext. 118, Klewis@myhrscreens.com and MyHRConcierge at 855-538-6947 ext.108, ccooley@myhrconcierge.com. Or, schedule a convenient consultation below: