You’ve made a few hires for your business and like any good employer, you run a background check. There’s one candidate who is perfect for the new accounting role, but for the first time, you get a background check report that is not squeaky clean. You’re torn about what you should do because you’re trying to balance understanding the significance of the items in the report with protecting the health and safety of your existing team and the smooth operation of your business. You need to move quickly, and you also don’t want to make a bad hire that could hurt your business in the long run. Should you move forward with this hire?
When I was growing up, my father worked as a corrections officer at some of the most famous prisons in New York State. I also had many family members who had spent time in the “system” because they made some bad choices early on in life. So, while I’ve always had a great appreciation for law enforcement, I’ve also held space for people who’ve made bad choices and are trying to turn things around. It’s why in my professional life, when I’ve been asked to make heads or tails of a background check report that has blemishes, I preach balance. In fact, the law requires it.
The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) are two government agencies that have both issued guidance which can be found here on how to navigate using background checks during the hiring process. These agencies require employers to dig a little deeper when evaluating a conviction on the front end and to provide proper notice on the back end if you decide not to hire.
First, the EEOC wants employers to make sure that any decision they make is job related and consistent with business necessity. But what does that mean? By using the factors below, we can sort this out a bit.
Legal Factors
Factors to consider before making a hiring decision:
- Nature and gravity of the offense: Consider the type of crime committed and its severity. Does it relate to the job responsibilities? For example, what if you’re hiring an accountant, and the criminal offense is related to financial crimes? What if the conviction for your accountant is for disorderly conduct?
- Time since the offense: How long ago did the conviction occur? Has the individual demonstrated rehabilitation and growth since then? Have they successfully held other jobs since the conviction? A person who committed an offense several years ago and who has since demonstrated positive changes in their life may still be a strong candidate.
- Nature of the job: Assess the specific responsibilities of the position. Assessing a candidate’s qualifications is vital. Some individuals have immense talent, experience, or skills that outweigh their past mistakes. Focus on what they can bring to your organization and the unique perspectives they might offer
- Relevance to the role: Evaluate whether the past offense is directly related to the duties of the job in question. Consider the specific role and responsibilities the candidate will hold. If the position involves direct client interaction, additional scrutiny may be called for. Create clear guidelines that help you figure out how criminal history may affect an employee’s ability to perform their job safely and effectively.
- Consistency of the individual’s account: Compare the information provided by the candidate with the results of the background check. Did they fess up during the hiring process or only after the report surfaced?
- References and recommendations: Seek input from those who can speak to the individual’s character and work ethic.
Next, if after reviewing all the factors above, you decide not to move forward, the FTC requires that employers take some additional steps to ensure fairness in the process. These include providing the candidate with the following:
- A notice that includes a copy of the consumer report you relied on to make your decision;
- Give the individual an opportunity to review the report and tell you if what’s in there is correct; and
- Provide them with a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which you should have received from the company that sold you the report.
Creating a Fair and Consistent Process
To ensure fairness and consistency in your hiring practices:
- Develop clear, written policies for evaluating candidates with criminal records.
- Train hiring managers on these policies and unconscious bias.
- Document your decision-making process for each candidate.
- Consider implementing a formal review committee for complex cases.
Conclusion
Sometimes, in our effort to hire with speed, we look for shortcuts (aka efficiencies) to speed up the process. However, as an employer, you have the power to make a significant impact on individuals’ lives and our communities. By thoughtfully considering candidates with criminal records, we can contribute to a more inclusive and equitable society while still prioritizing the safety and well-being of those we serve.
Assessing a candidate’s qualifications is vital. Some individuals possess immense talent, experience, or skills that outweigh their past mistakes. Focus on what they can bring to your organization and the unique perspectives they might offer. When in doubt, contact an attorney in your area to sort this out.
Sedgwick Andrews is here to help!
Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice. Reading this blog does not create an attorney-client relationship between you and the author. For specific legal advice regarding your individual situation, please consult with a qualified attorney.
