Criminal Background Checks on Employment Applicants
Criminal Background Checks—DO YOU DO THEM, HOW DO YOU DO THEM, AND IF You DO THEM, how do you use them?
State and federal laws now require for many jobs, such as those in schools, nursing homes, day-care facilities, in-home service businesses, hospitals, truck drivers, and the like, that employers check the criminal history of the prospective employee, and exclude those with certain convictions from employment. Criminal background checks are smart for most employers, even if not legally required, especially for those employees who will be handling money, or who will have substantial customer or client interaction. You may want or need criminal histories for applicants and on a post-hire for continuing compliance on current employees. Employers have to be careful how they do criminal history checks and how they use the information, however, or they may be triggering liability.
First, if you do not perform the criminal background check in-house with your own personnel, but outsource it to a third party or service (consumer reporting agency), you probably will have to get consent of the applicant in advance, and comply with the requirements of the Fair Credit Reporting Act (“FCRA”) if you reject an applicant based on the report you receive. The background check can be considered a “credit report”. The FCRA requirements are set out at www.ftc.gov. You can access state criminal histories yourself through the Texas Department of Public Safety website. The most accurate searches at that website are fingerprint-based; however, name searches are possible also with correct birthdates and names. Federal criminal histories are obtained through the FBI.
Second, you have to be wise in how broadly you exclude applicants based on the results of the criminal background history. The EEOC may find that you have overly broad exclusions, which violate Title VII, and constitute discrimination (based primarily on race or national origin). Historically, certain arrests and convictions disproportionately have been against certain races or national origins and a disparate impact claim can arise from an overly broad exclusionary policy. The Pepsi Corporation found this out in an expensive lesson. The EEOC investigation on the Pepsi charge found that more than 300 black applicants for warehouse workers were excluded by Pepsi’s overly broad policy, which denied employment to those arrested or convicted of minor offenses which were not job-related.
Under a conciliation agreement with EEOC, Pepsi must revise an overly broad criminal background check policy, provide training to managers on use of criminal histories, and pay $3.13 million to settle the claim that its policy violated Title VII.
The EEOC office that brought the claim noted that 92 million Americans have a criminal history, and the majority of arrests or convictions in a given year are for relatively minor nonviolent crimes. For example, among the almost 14 million arrests recorded in 2009, only 4 percent were considered serious violent crimes, such as murder, rape, robbery and aggravated assault. Inquiring about arrest history, rather than convictions, it is riskier also. Many people who have been arrested for a crime have not been convicted, not only those charged with minor crimes, but also for those charged with more serious crimes.
Minor crimes and arrests may be irrelevant for the position at issue. The EEOC’s position is that for even convictions to be relevant as a bar to hire, “an employer must consider the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job sought.” If you inquire about arrests or convictions of an applicant or employee, use a disclaimer stating that you will consider the information obtained only as the EEOC allows, using almost this exact language, as part of a written disclosure to the applicant, on the job application form or separate writing. Then, be sure you consider the criminal history as set out in these guidelines.
The EEOC stated in the resolution of the charge against Pepsi, “(W)e hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.” So, employers take note!
Adair Buckner is an Amarillo attorney with Buckner & Cross, L.L.P. She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-322-7777 or firstname.lastname@example.org. This material is not intended to be legal advice. The contents are intended for general information purposes only.
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