Discovering that the stellar job candidate you planned to hire has a criminal background is a bummer. A criminal past can derail a career, despite the nature of the crime, when it occurred or its relevance to an employment opportunity. However, before you rescind that job offer, consider this: ruling out job applicants solely because they have a criminal background could be breaking the law.
Fairness in Hiring
Federal and state employment guidelines support fairness in hiring. Federal guidelines for employers, including those doing business with the government, must comply with anti-discrimination laws. Employment practices or policies that eliminate job applicants solely because of their criminal backgrounds might be violating the law. The government's theory is that employers who intentionally discriminate against such applicants, without considering the nature of the offense, the date it occurred or its connection to the job opening, could be unjustifiably denying employment opportunities to alleged offenders.
Rising Criminal Records
The rise in the number of Americans in the judicial system means more criminal records are likely to surface in employment background checks. The government estimates that one in three Americans has a criminal record. But not all arrests lead to convictions, not all convictions lead to prison and some convictions are for nonviolent offenses. In short, you could be denying a job to someone with a criminal record who otherwise qualifies. Another problem employers face is the risk of discriminating against non-whites, who are disproportionately arrested, convicted and imprisoned for crimes. The U.S. Equal Employment Opportunity Commission protects non-whites against discrimination under Title VII of the Civil Rights Act.
Fair Credit Reporting Act
The Fair Credit Reporting Act restricts employers' use of credit reports and criminal background checks on job applicants. Employers must notify applicants in writing about conducting background investigations and get their written consent to access information. Also, employers must tell applicants that a conviction or poor credit history won't automatically disqualify them for a job. Federal law doesn't prevent you from asking about applicants' arrests and convictions, although some state laws do. The EEOC warns against assuming that applicants committed a crime, even if they were arrested and convicted. If you suspect guilt, the EEOC advises that you allow applicants to explain the circumstances and then decide whether you trust them to do the job.
Criminal Background Checks
Employers run criminal background checks for good reason -- they want to avoid hiring people who could endanger the workplace and they don't want to be held liable for criminal behavior. To keep from violating Title VII, the FCRA or state laws, employers should consider the relevancy of an applicant's criminal record to the job opening. A company could justify not hiring a convicted embezzler as the CFO, for instance, but hiring the person as a graphic designer might not be as risky. Where the job is performed and the level of supervision required are other considerations. Someone convicted of home break-ins or predatory crimes might not be suitable for a job offering emergency help or requiring unsupervised visits to customers' homes, such as a roadside mechanic or utility-lines person.
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