Employers are understandably hesitant to hire an applicant with a criminal history. There are good reasons to exercise caution ― employers face considerable exposure for workplace violence committed by employees.
The U.S. Department of Labor‘s Occupational Safety and Health Administration regularly cites employers that have failed to enact adequate safeguards against workplace violence. Employers also may be sued in private lawsuits based on negligent hiring or retention of employees who commit workplace violence.
Even apart from safety issues, many employers reasonably feel that a job applicant’s honesty, trustworthiness, and good judgment (or lack thereof, as reflected in a criminal history) are relevant factors to consider in assessing the applicant’s suitability for a job. However, while there are plenty of good reasons to look into applicants’ criminal backgrounds, there are an equal number of potential minefields that must be avoided.
First, you need to understand that in two states (Massachusetts and Hawaii) and under numerous city and county ordinances, you aren’t permitted to inquire about criminal history at the application stage. While those laws don’t prohibit you from taking criminal history into account in hiring decisions (such as by asking about criminal history in job interviews or conducting pre- or postoffer background searches), they do preclude you from asking an applicant to check “yes” or “no” regarding criminal history on a job application. The theory being an applicant should at least be given a chance to explain his prior criminal history without being screened out solely based on admitting to a prior conviction.
In many states, there is no limitation on the rights of employers to ask about an applicant’s criminal history in connection with jobs within the state. However, companies that employ workers outside the state are subject to any local laws in those states. These “ban the box” laws, which sometimes apply only to government employers or contractors and sometimes to all employers, are gaining momentum and likely will be proposed in more states and cities in the months to come. Also, some states have pretty specific rules about what kinds of criminal history can be gathered and/or taken into account in making hiring decisions ― for instance, California law prohibits employers from asking about marijuana convictions that occurred more than two years before the application.
On the federal level, the Equal Employment Opportunity Commission (EEOC) has taken the position that you may not have a rigid rule against hiring applicants with prior felony convictions. The EEOC says that because minorities are arrested and convicted at a higher rate than nonminorities, such a policy has a disparate impact on minorities in violation of Title VII of the Civil Rights Act of 1964.
On the other hand, the EEOC has said that a policy that simply takes prior felony convictions into account, looking specifically at the nature of the crime and the requirements of the job, isn’t necessarily racially discriminatory. However, you must be careful when screening search results to make sure you aren’t eliminating minority applicants while hiring white applicants with similar criminal histories.
Finally, any employer that uses a third-party search company to conduct background checks, including criminal history checks, should be mindful of the requirements of the Fair Credit Reporting Act (FCRA). The FCRA doesn’t limit your ability to take criminal history into account in making hiring decisions, but it does require that very specific types of notices be provided to applicants and employees who are subject to background searches. The bottom line is that you must be familiar with all applicable state, federal, and local laws when considering the job applicant’s criminal history.
Kara Shea is the editor of Tennessee Employment Law Letter and a partner with Miller & Martin PLLC, practicing in the Nashville office. She can be reached at (615) 244-9270 or kshea@millermartin.com.
Watch Shea’s interview at AEIS about city and county initiatives regarding background checks