Criminal Background Checks: Cautious Employers Could Cost Their Company

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As a cautious employer, let’s say you run a criminal background check on all of your applicants. Your latest candidate’s report comes up with an arrest record from just a few months ago for theft but no conviction. What do you do? In a situation like this, it is best to call counsel because the wrong answer could cost the company.

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When we hear something like this from a client, there are many questions that start coming to mind, such as:

  1. When in the hiring process did the employer ask about the criminal background or criminal record of the applicant/candidate?
  2. Did the employer provide the proper notices and receive the requisite authorizations to run the background check?
  3. What is it about the criminal background check that is concerning the client—an arrest or a conviction?
  4. What are the details of the arrest/conviction compared with the job duties and requirements of the position of the applicant/candidate?

These are just a few of the questions that start the process of understanding (1) whether a violation has already occurred by an employer in simply asking for the criminal background check and (2) whether the employer can proceed in using the information it now knows to make a decision affecting this applicant/candidate.

Can You Ask a Prospective Employee About His or Her Criminal Record or Run a Criminal Background Check?

Notably, federal law does not prohibit employers from running criminal background checks or asking about a criminal record on an application, unless they are a federal agency or government contractor. In 2019, the Fair Chance to Compete for Jobs Act of 2019 was signed into law, prohibiting inquiries before a conditional offer is made, with some exceptions. Regardless, federal law requires employers to provide specific notices and obtain consent before doing so under the Fair Credit Reporting Act.

Many states (and even local jurisdictions) have placed restrictions on an employer’s ability to ask a prospective employee about his or her criminal record or run a criminal background check. Commonly, these types of laws are referred to as ban the box laws (referring to the box on an application) or fair chance laws. However, of course, these states have varied in the types of restrictions imposed. Therefore, whether an employer can ask a prospective employee about his or her criminal record or run a criminal background check will depend on the state (and sometimes even the county or city) in which it operates or employs the candidate.

Several states prohibit employers from including a question on an employment application about a criminal record. Other types of restrictions include prohibiting employers from making any inquiry about a criminal record/history or running a criminal background check until after a conditional offer of employment is made, until after a determination has been made that the applicant is qualified, until after a determination has been made that the applicant is a finalist, until after a candidate has been selected for an interview, or until after a candidate has had the first interview. States that have these restrictions have chosen some of these variations or a combination and may even have additional restrictions. Various other states prohibit employers from placing job advertisements stating that applicants cannot have a criminal record/history. Many of these restrictions have exceptions, some of which vary based on the type of position or whether state or federal laws require or permit something different. Some of these restrictions do not apply to various types of employers, depending on the type of business they are in or their size.

Employers should carefully review the laws governing their state and locality and consult with counsel before initiating or continuing a practice of making statements about criminal records in job advertisements, making any criminal inquiry on an application or at any point during a hiring process, or running a criminal background check at any point during a hiring process.

Can You Use the Information You Received to Make Your Decision Whether to Hire?

Various states have also implemented laws governing employers’ access to criminal records and use of such records in employment decisions. However, in any jurisdiction, be mindful that the federal Equal Employment Opportunity Commission (EEOC) has taken a stance on how to use information from a criminal background check in your decision-making. While Title VII of the Civil Rights Act of 1964 does not prohibit running criminal background checks, it does prohibit employment practices that create a disparate impact on a category of individuals within a protected class. The EEOC has promulgated guidance for employers on how to use the information employers receive on criminal backgrounds of potential employees. This guidance certainly includes making individualized assessments for each situation, considering the particular criminal record involved and the particular position for which the candidate has applied. Factors the EEOC recommends considering include:

  • Facts/circumstances of the offense or conduct underlying the offense;
  • Number of offenses for which a conviction actually resulted;
  • Whether the person is of an older age at the time of the conviction or release from prison;
  • Any evidence that the candidate performed the same type of work he or she is being considered for after his or her conviction without any known incidents of criminal conduct;
  • Length and consistency of employment history before and after the offense or conduct underlying an offense;
  • Rehabilitation efforts;
  • Employment/character references and any other information about the candidate’s fitness for the particular position; and
  • Whether the candidate is bonded under a federal, state, or local bonding program.

For the EEOC’s guidance on this topic, visit here.

Certain state laws also require an individualized assessment (with factors) about the particular candidate’s criminal record and the position for which he or she is applying, in essence tying in or requiring a legitimate business reason for using the criminal record. These states also usually require some sort of written notice to the candidate about the preliminary decision to deny employment, with a copy of the record prompting such a decision, and giving the applicant a period of time to review and respond to the preliminary decision. Employers would then need to consider that response before making a final decision. In most instances, the final decision would also need to be provided in writing to the candidate and with some explanation of any process to challenge the decision or file a complaint. Some states prohibit relying upon mere arrest records rather than actual convictions. The approaches vary from state to state.

What Can a Violation Cost an Employer?

While some state laws do not create a private right of action for violations, many provide for a state agency complaint process. Violations certainly can cost employers sometimes up to thousands of dollars in civil penalties. Other states do create a private cause of action for individuals, permitting reinstatement/hiring, recovery of actual damages/back pay, costs and attorneys’ fees, and punitive damages for certain violations like willful violations.

Being too cautious as an employer and simply relying upon criminal records could prove costly to the company. Instead, cautious employers should take a different route—consult with legal counsel to determine to what extent your hiring process should involve criminal background checks and/or criminal record inquiries and to guide you in making employment decisions based on criminal backgrounds or criminal records that are obtained.

Ashley M. LeBrun, Esq., is an employment attorney at Archer & Greiner P.C., admitted in New Jersey; Pennsylvania; and Washington, D.C. She counsels employers in employment matters and provides training and investigative services of internal complaints. LeBrun also defends employers in discrimination, harassment, and retaliation matters at the federal, state, and local administrative agency levels (https://www.archerlaw.com/attorneys/ashley-lebrun/).

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