It all starts with an applicant's interest in the job and, ultimately, an interview with you, the hiring manager, wherein you extend a conditional job offer. Then you discover the candidate has an arrest record. Before you rescind the job offer, know the ramifications of doing so based on employment laws and best practices. Also, reconsider whether you're too narrowly focused on your duty to protect the organization from potential liability for negligent hiring vs. making hiring decisions that are in the best interest of the organization's need for qualified talent.
Eliminating Conviction Questions
Many of the successful state and local "Ban the Box" initiatives eliminate questions such as "Have you ever been convicted of a crime?" from standard employment applications. Proponents base the initiative on giving job seekers who would otherwise have to answer "yes" a chance to prove they're qualified for the job before they're eliminated even before an interview. Criminal history records generally aren't pulled until the candidate receives a conditional job offer, and a criminal history might include arrests. By this time, the candidate has shown she's qualified and it's your workplace policy concerning arrests that would disqualify her. Review your policy on criminal history before you immediately rescind the job offer.
Many employers don't ask about arrest records, so that information may not come to light until your company conducts the criminal history check. Depending on state law and some local laws, arrest records cannot be used in the decision to hire. State law and the type of industry or job might dictate whether you can even ask about arrests. For example, employers in Massachusetts and Rhode Island can't ask applicants about arrest records or criminal charges that didn't result in a conviction. On the other hand, in California, arrest records aren't even part of a public records search.
The U.S. Equal Employment Opportunity Commission has pretty strong evidence why employers shouldn't automatically disqualify candidates based on arrest records. It has to do with the greater propensity of minorities being arrested than non-minorities. The EEOC also cautions employers to avoid believing that arrests are solid indicators of criminal conduct or predictors of future criminal conduct. On the other hand, the agency says that employers should consider the circumstances and the type of job to determine whether to rescind a job offer based on an arrest record. For example, someone who is arrested on drug charges, but not convicted, might be worth closer scrutiny if the job is at a hospital or pharmacy.
Fair Credit Reporting Act
Employers who conduct background checks are subject to the rules of the Fair Credit Reporting Act. Although a candidate's criminal history may become part of his background check, the FCRA specifically prohibits arrest records from being reported on a consumer report -- that's usually what these reports are called -- if they're more than 7 years old. Therefore, if you happen to receive information about an arrest record that falls outside what the act permits, then you might end up having to explain why you didn't adhere to the FCRA guidelines.
You have a duty to give candidates a copy of their rights under the FCRA, called a "pre-adverse action disclosure." And when you decide to rescind a job offer upon receiving information that you believe disqualifies the candidate from being hired, you must provide an "adverse action notice." The adverse action notice gives job seekers the right to dispute information obtained through a background check. Therefore, know your company's policy on what substantiates a valid dispute should the candidate ask you not to rescind the offer and can prove why you shouldn't.
- U.S. Equal Employment Opportunity Commission: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964
- Entrepreneur: Job Application Form
- Workplace Fairness: Can Employers Use Arrest History in Hiring Decisions?
- The Washington Post: For Ex-Cons Seeking Work, Let's 'Ban the Box'
- Nolo: Employer Use of Arrest and Conviction Records in Rhode Island
- Nolo: Employer Use of Arrest and Conviction Records in Massachusetts
- Privacy Rights Clearinghouse: What Is Included in a Background Check?
- Brand X Pictures/Brand X Pictures/Getty Images