In the past few years, we have seen an unprecedented amount of legislation dealing with the background check industry at every level of government. No matter if it is looking at the health industry or a retail job, the layers of laws dealing with background checks for criminal history has seen itself clouded in mystery, and blurred lines have developed. No longer is it black or white in this industry, and we are here to help you straighten out the lines in terms of background checks, and especially in terms of criminal background checks.
Federal, State or local law needs to follow one important law, the Civil Rights Act of 1964 in terms of the use of background and criminality checks by companies or governments. The Equal Employment Opportunity Commission (EEOC) has been tasked to enforce the Title VII of the Civil Rights Act which prohibits employment discrimination based on race, color, religion, sex or national origin. The EEOC has released guidance on the best practices dealing with background checks, and it shows where and how background and criminality checks should be used by private employers as well as by federal, state, and local governments.
The EEOC standard states “Individualized Assessment should be used, which would encourage employers to allow applicants a chance to explain themselves when a report of past criminal misconduct is brought to light in the employment screening process”. With that in mind, here is the list of best practices from the EEOC.
Treat applicants with similar criminal records consistently. For example, do not refuse to consider ethnic applicants who have criminal records if you consider applicants of other national origins who have the same or similar criminal records.
Avoid using an employment policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race or national origin, and does not accurately predict who will be a responsible, reliable or safe employee.
If you ask applicants for criminal history information, consider waiting until later in the hiring process to do so. That way, you'll have the opportunity to consider applicants' qualifications for the job before you assess the relevance, if any, of applicants' criminal history. However, in some circumstances, you may need to request criminal history information early in the hiring process to comply with certain laws or regulations.
Treat arrest records differently than conviction records. The fact that someone has been arrested is not proof that they committed a crime. Arrest records may be inaccurate or incomplete. For example, they may not indicate whether charges were filed or dismissed. However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies a negative employment decision.
Consider reviewing the accuracy and relevance of a conviction record before basing an employment decision on that record. Conviction records are usually proof that a person participated in criminal activity. However, in certain circumstances, you may decide not to rely on a conviction record when making an employment decision. For example, you may conclude that the record is inaccurate or outdated.
Give applicants an opportunity to explain their criminal history. Inform applicants if they may be excluded from consideration because of prior criminal conduct. Provide them with an opportunity to respond, and consider reevaluating them based on their explanation.
As a company, we have worked with thousands of businesses in completing their background checks for criminality, and we have followed the EEOC guidelines to prevent issues of discrimination for our clients. The EEOC does amazing work, and as a background check company, we have been supportive of their guidelines, and thus we are encouraging our clients to know the best practices that they are promoting.
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