Background Checks Can Be Dicey

If employers act unilaterally to exclude all job applicants who have criminal records from jobs, they run the risk of setting themselves up to charges of race discrimination and other allegations.

Employers can’t turn away potential employees simply because of a long-ago conviction that is unrelated to a job for which they are applying. i.e., DWI charges and the candidate is applying to be a store cashier. Employers cannot dismiss candidates based on criminal background checks, when they should have considered each applicant individually and evaluated whether his or her past arrest or crime had any bearing on the job for which they applied.

All leading and not so leading, employers conduct criminal background checks on all of their candidates who are advancing through the process. At the same time, the number of Americans with criminal records has escalated dramatically in recent years. It’s been reported that one in three Americans has some sort of criminal record, which often includes an arrest that didn’t lead to a conviction, a conviction that didn’t result in jail time or a conviction for a non-violent crime. Yet often these records are included in overall background checks that then exclude applicants from jobs.

When it comes to incarceration rates, black men are imprisoned at six times the rate of white men.

Employers need to revisit how they go about running background checks.  Employers must consider the nature of the crime, its relation to the potential job, and the time that has passed since the offense. Employers must give candidates the opportunity to explain the circumstances of their criminal records, including information about whether they already proved they could do the same sort of work for which they’re applying, and whether they had gotten rehabilitation or other training.

If someone was charged with a larceny but never brought to trial, he still has a criminal record. What if he is innocent? Is he a criminal who deserves to be barred from a job? To be sure, there are also people who were found guilty and served time for their crimes. But once they’ve paid their debt to society, do we want to keep them permanently unemployed, particularly if their prior offense has nothing to do with the job they want? Are we a society that does not believe in second chances?

Fortunately,  the government is beginning to  crack down on employers who use background checks without looking at whether the criminal record has any relevance to the job and without giving the applicant a chance to show that she or he is fit to do the work. Employers are going to have to start looking at more legal and fair ways to evaluate job applicants with criminal records.

Broad-brush practices that automatically exclude thousands of qualified applicants cannot be tolerated nor accepted.

Of course, candidates are becoming more and more savvy at figuring out how to “Beat” a criminal background check. We certainly do want to encourage that kind of behavior.

Just some food for thought.