Criminal Background Check for Employment: The Legal Landscape

By Mariah Collins, SHRM-CP on Dec 01, 2023
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If you’re wondering if it’s legal for employers to run a criminal background check for employment, you’re not alone. This is a common concern among business owners and managers, especially in small businesses where team dynamics and culture are crucial.

At Axcet HR Solutions, we recognize that every hire is significant, and making the right choice is critical for your business's success. In this article, we aim to clarify whether you, as an employer, have the right to check an applicant's criminal history.

Is a Criminal Background Check for Employment Legal?

The legality of conducting a criminal background check for employment is nuanced. The extent to which these checks are permissible largely depends on your business’s location, meaning the laws of the state and city where your employees work. While this article focuses on federal compliance, it's imperative to be aware of and adhere to local laws.

It's important to note that no federal laws outright prohibit checking an applicant’s criminal history. However, employers must be mindful of several legal limitations that apply nationwide. These restrictions are crucial for any employer considering the implementation of criminal background checks as part of their hiring process.

RELATED: Hiring Someone with a Criminal Record >> 

Obtaining Applicants’ Permission for Criminal Record Checks

Before conducting a criminal background check for employment, small business owners are legally required to obtain written consent from the applicant. This step is not just a formality but a crucial legal requirement. It respects the applicant's privacy rights while allowing employers to conduct due diligence.

Applicants retain the right to withhold permission for such checks. However, employers should be aware that they are also within their rights to consider refusal to consent as a factor in their hiring decisions. This mutual understanding of rights ensures a transparent and legally compliant hiring process.

Ensuring Non-Discriminatory Use of Criminal  Checks

It is imperative that your criminal records check process does not inadvertently lead to discrimination against any applicant or group of applicants. While your intent may not be to discriminate, it's crucial to ensure that your procedures are equitable and do not disproportionately impact individuals based on race, national origin or other protected characteristics.

Legal compliance demands that any exclusion of applicants due to their criminal history must be directly related to the job in question and absolutely necessary for the role. Furthermore, if there is a less discriminatory method to achieve the same goal, it should be employed. This approach helps in safeguarding against unintentional bias and upholding fair hiring practices.

RELATED: An Employee Makes a Racial Discrimination Claim – Now What? >> 

Assessing Criminal Records for Job Relevance

The Equal Employment Opportunity Commission (EEOC) issues guidance for employers on hiring applicants with criminal records. In their guidance, they emphasize that the decision to deny an applicant based on their criminal record may only be reached after an “individualized assessment that considers the applicant, the nature of the criminal offenses in his or her history, and how these offenses relate to the performance of a particular job.”  

In other words, your business must take into consideration whether the offense(s) disclosed on an applicant’s criminal record check would have a bearing on the performance of the job duties outlined in the open role’s job description. If not, the EEOC is clear that an employer shouldn’t simply deny the applicant as a blanket rule.  

sample policy hiring an applicant with a prior criminal background

Providing Dispute Opportunities for Background Checks

If an applicant's criminal record check reveals derogatory marks that lead you to deny their application, it's essential to inform them of this decision. Per federal regulations, the following information must be provided to the applicant:

  • The name, address, and phone number of the background reporting company.
  • A statement clarifying that the decision not to hire was made by your company, not the background reporting company, and that the latter cannot provide specific reasons for the hiring decision.
  • Their right to dispute any inaccuracies or incomplete information in the report with the background reporting company.

Additionally, applicants are entitled to request a free report from the background reporting company if they do so within 60 days of receiving notice of the adverse hiring decision. This right ensures transparency and fairness in the hiring process, allowing applicants to address and rectify potential errors in their background checks.

RELATED: Company Policies for Hiring Applicants with Criminal Records >> 

Understanding 'Ban the Box' Laws in Employment Screening

In recent years, 'Ban the Box' laws have significantly shaped the landscape of criminal background checks for employment. These laws, aimed at eliminating initial barriers for applicants with a criminal history, require a nuanced understanding from employers.

Essentially, they dictate when and how an employer can inquire about an applicant’s criminal record. By delaying this inquiry until later in the hiring process, 'Ban the Box' laws seek to ensure that all candidates are first assessed on their qualifications, fostering a more inclusive and equitable hiring environment.

Currently, 37 states, Washington, DC, and over 150 cities and counties (including Kansas City, Missouri) have adopted Ban the Box policies. 

Ban the Box - Kansas City

Partner with Axcet HR Solutions for Expert HR Management

Navigating recruitment and onboarding processes can be complex, especially with the ever-changing landscape of HR compliance. Are you confident that your strategies meet all federal, state and local regulations? Let Axcet HR Solutions be your guide. 

With our extensive experience and expertise, we're here to answer all your HR compliance questions and provide the support you need, exactly when you need it.

Don't leave your HR management to chance. Schedule a conversation with us today and discover how Axcet can elevate your HR practices. We're more than just an HR outsourcing company; we're your partner in creating a thriving, compliant workplace.

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