Employment Screening Tips: Asking Applicants About Arrest Records
Most states and the EEOC ban questions about arrest records and restrict the use of conviction records for new hires. Here are some ideas on how to protect your employer against negligent hiring claims and still comply with these restrictions.
During a recent management development seminar conducted by Car Dealer Insider, the subject of job applicants with criminal records came up. It seems that an increasing number of candidates have had a brush with the law at some point and the sales and service managers in the seminar wanted to know how to handle this sometimes delicate situation.
Their concern is grounded in reality. It is not unusual for dealership salespeople, service advisors, and technicians to go for test-drives with customers in the customers’ vehicles.
Some dealers encourage sales consultants to go to a customer’s home if that’s what it takes to close a sale.
Many legal experts agree that employers should protect themselves from negligent hiring claims by investigating the criminal background of prospective employees, particularly those who will have access to customers’ financial records, vehicles, or homes.
Under the legal theory of negligent hiring, an employer may be held liable for the violent acts or wrongdoing of an employee if a manager did not adequately investigate the employee’s background or qualifications, and the employee is later found to have a history of harmful tendencies.
However, the type of information that may be gathered in background investigations, such as information on arrest and conviction records, and its use are restricted by the Equal Employment Opportunity Commission (EEOC) and state laws.
Specifically, the EEOC takes the position that employers should not even ask about arrest records because of the adverse impact these inquiries can have by excluding minority applicants.
In addition, several states specifically prohibit employers from asking applicants about arrests that did not result in conviction or about records that have been sealed or expunged.
For example, the California Labor Code prohibits employers from asking about an arrest or detention that did not result in conviction. Similarly, the Illinois Criminal Identification Act does not allow employers to inquire into, or to use the fact of, an arrest or criminal history record that has been expunged, sealed, or impounded.
Records of criminal convictions often are treated differently under federal and state law.
The EEOC has determined that an employer may inquire about criminal convictions, but a conviction should not be used automatically to disqualify a job applicant. In addition, even if a dealership manager can show a direct relationship between the job and the offense, this condition may not be enough to disqualify the applicant.
Rather, according to the EEOC, the employer may refuse to hire an applicant based on a conviction only if doing so would be inconsistent with the operation of the business and consideration has been given to all the circumstances.
This consideration should include the nature of the offense, its remoteness in time, the number of convictions, the relation between the offense and the job, the applicant’s employment history, and efforts at rehabilitation.
That sounds good in theory, but it’s awfully hard to put into practice in a employment setting.
Many states also allow employers to consider an applicant’s criminal convictions, although some require consideration of whether the conviction is job-related.
For example, in New York, car dealers may inquire into prior convictions but may not deny employment based on a conviction unless the offense is related directly to the job or the employment of the applicant would present an unreasonable risk.
Based on the EEOC’s position and state laws, hiring managers should not ask job applicants about arrest records.
If asking about convictions, the manager should clearly indicate that a criminal conviction does not disqualify the applicant from consideration.
Finally, to comply with the EEOC’s restrictions, employers generally should only consider refusing to hire an applicant based on a criminal conviction where there is a direct relationship between the offense and the position sought, and when there are no mitigating factors.
So, when considering employees with access to customers’ records, cars, and homes, any convictions showing violent tendencies, for example, likely would be considered relevant to their jobs.
Of course, in situations where the relationship between a conviction and the applicant’s potential job are less clear, the dealership manager may be faced with the dilemma of having to choose between the lesser of two evils.
The choice could well boil down to weighing the risk of being sued for hiring discrimination by an ex-convict versus a potential negligent hiring claim involving serious acts of violence.
Using Arrest Records In Employment decisions
The following sites have very helpful information for HR Professionals regarding the state laws relating to this subject.
For information on each states laws regulating asking about arrest records that did not lead to a conviction: Click Here
State Laws and Their Impact on Use of Criminal Records for Employment Purposes
This a great brief description of state laws that human resources professionals need to know every day.
Please also note that all employment background check, drug screening, driving record and state release authorization forms are available in a PDF format file to our Automated Employment Screening Clients.
All of these FCRA compliant release documents may be e-mailed to the applicants and easily completed online.