I am certain most of you have heard that old saying, “the more you know, the less risk you have.”
Common sense . . . right? While this philosophy may be true when it comes to preventing internal theft and reducing your risk to workplace violence, the Equal Employment Opportunity Commission (EEOC) cautions us that an employer’s reliance upon criminal background checks when making hiring decisions may be troublesome and present a precarious legal issue.
In its guidance, the EEOC warns employers not to use arrest records at all in hiring decisions. “Because arrests are not proof of criminal conduct – they often do not result in charges, and charges often do not lead to convictions – basing a hiring decision on an arrest record is presumptively discriminatory.” (An employer can, however, investigate the conduct that led to an arrest and, according to the guidance, “make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.”)
Using conviction records to deny employment can also be illegal if it’s irrelevant to the job. The Hayes Report has cautioned recruiters in the past to use special care when hiring personnel to ensure that those applicants with criminal convictions that were not job-related are not rejected from employment unfairly. For example, a person with a DWI conviction applying for a position as a stock-person should not be rejected if the decision not to hire is based solely on that conviction, just as we would expect an applicant with an embezzlement conviction applying for a financial bookkeeper’s job be turned-down for employment.
Making a decision not to hire based solely on an applicant’s arrest record@ (without conviction) is also extremely high risk and possibly unlawful to say the least. Caution must be used when criminal matters are still pending in a court-of-law.
Furthermore, EEOC specifically discourages employers from asking about criminal history on an application. At least one legal expert encourages their clients “to wait to ask about criminal convictions until they have determined that the applicant is qualified and in the pool of candidates who would be offered a job.”
My layman’s advice is to always discuss hiring issues in advance with your human resource=s attorney. $