EMPLOYMENT BACKGROUND CHECKS
Sample Policy for the Use of Arrest, Conviction, Felony and Misdemeanor Information In Employment Decisions
The following is an example of a policy which attempts to comply with the EEOC guidelines on the subject.
Complying with State Laws
State laws dealing with the use of criminal history information in the hiring process are more complicated than the EEOC guidelines.
A number of states have laws requiring that certain professions, such as people working in child care, elder care, schools, and law enforcement, be checked for relevant criminal histories.
Following is a summary of our current understanding of state laws which affect the use of criminal histories in hiring for more general employment.
This information is drawn from materials available over the internet.
All applicants are required to disclose on the employment application if they have been convicted of or served time for a felony.
If they have, they are required to describe the situation on the application.
The application states that this information will be reviewed for job
relatedness and time since conviction.
The applicant will be rejected if the applicant discloses or if a criminal history report reveals that the applicant has:
1.Any felony convictions in the last seven years. However, exceptions may be considered in truly unusual cases where the conviction does not reflect upon the applicant’s suitability for employment.
2.Any misdemeanor convictions in the last seven years involving violence, theft, drugs, or sexual misconduct. Again, exceptional cases may be considered.
3.If an applicant has been arrested (but not convicted) in the last seven years for any crime that would have made him/her unacceptable for employment by ABC Corporation if the applicant had been convicted, the manager will make a reasonable effort to determine if the applicant actually committed the offense.
If the manager is not convinced that the applicant did not commit the offense, then the applicant will be rejected for employment.
Exceptions and questionable cases may should be resolved by communicating with your human resources consultant. We recommend Seay Management Consultants in Orlando Fl.
Complying with State Laws
This list is not all-inclusive, but attempts to highlight major state legislative initiatives.
Many states have laws granting employees certain protections regarding criminal record disclosure.
While protections vary from state to state, prospective employees generally do not have to disclose any information concerning an arrest or criminal charge that did not result in a conviction or any information about convictions which have been pardoned by a governor.
Some of the states, notably California, Massachusetts, and Michigan, will commence legal action against employers who violate their statutes regarding the use of criminal records.
Employers are restricted from asking applicants about any arrest that did not result in a conviction, and are also prohibited from seeking the information from any other source. There are exceptions to this rule. Three of them are listed below.
An employer may ask about arrest information:
• When the employee who was arrested is out on bail on his own recognizance pending trial.
• When an employee is applying for jobs with access to patients, drugs, or medication.
• When an employee is applying for a supervisory position or a position which involves disciplinary power over minors or other persons.
Because of the complexity of California’s law with regard to the use of arrest and conviction information in the hiring process,we especially encourage California employers to seek legal counsel in this area.
Reference: California Labor Code, Section 432.8
Hawaii has the nation’s most restrictive law on the use of arrest and conviction records in the employment process. Hawaii Revised Statute 378-2 completely bars most Hawaiian employers from using either arrest or conviction information in the employment arena. (There are limited exceptions which apply to the state, counties, private schools, the Department of Education, financial institutions, the board of an association of apartment owners, and the manager of a condominium.)
It is not our understanding that this statute prohibits an employer from another state from checking the Hawaiian criminal history of an applicant who formerly lived in Hawaii.
As far as we have been able to determine, this far reaching statute has not been challenged or interpreted in the courts.
Reference: Hawaii Revised Statute, Section 378.2
Employers cannot ask if an applicant has been arrested.
Employers cannot use criminal history information which has been expunged, sealed, or impounded as a basis for denying employment or promotion.
Reference: Illinois Complied Statute Annotated, Chapter 775, Section 5/2-103
Employers are restricted from asking applicants about any arrest not followed by a valid conviction, convictions that have been annulled or expunged, and misdemeanor convictions for which no jail sentence can be imposed.
Employers who deny an applicant a position, or deny an individual a license, solely or in part because of that person’s prior conviction, must notify the individual in writing of the grounds for the denial and the earliest date for re-application.
Reference: “Pre-Employment Inquiries Generally Prohibited by the Minnesota Human Rights Act”
Employers may not question prospective employees as to any criminal record (arrest or conviction) that has been expunged or sealed.
Reference: Ohio Revised Code Annotated, Section 2151.358(A)-(I)
Employers can get criminal history information only for specified purposes, which include pre-employment background checking as it relates to that applicant’s fitness to perform the particular job sought.
Employers must notify the employee or prospective employee that they are making an inquiry into their criminal record and must make the records available to the employee.
Reference: Washington Admin. Code, Chapter 162, Sections 162-12-100et se