pre-employment background screening after...

Pre-Employment Background Screening

After EEOC's New Guidance Structuring Policies to Comply With Title VII, Fair Credit Reporting Act and State Law

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

WEDNESDAY, AUGUST 1, 2012

Presenting a live 90-minute webinar with interactive Q&A

Pamela Q. Devata, Partner, Seyfarth Shaw, Chicago

Cindy D. Hanson, Partner, Kilpatrick Townsend & Stockton, Atlanta

Lester S. Rosen, Founder, President and CEO, Employment Screening Resources (ESR), Novato, Calif.

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality of

your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory and you are listening via your computer

speakers, you may listen via the phone: dial 1-866-258-2056 and enter your

PIN -when prompted. Otherwise, please send us a chat or e-mail

[email protected] immediately so we can address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

Continuing Education Credits

For CLE purposes, please let us know how many people are listening at your

location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of

attendees at your location

• Click the SEND button beside the box

FOR LIVE EVENT ONLY

Conference Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the + sign next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

EEOC GUIDANCE

RELATING TO

CRIMINAL HISTORY

IN EMPLOYMENT

Pamela Q. Devata, Esq.

131 South Dearborn Street, Suite 2400

Chicago, Illinois 60603

(312) 460-5535

[email protected]

©2012 Seyfarth Shaw LLP 6 |

Agenda

• Why now?

• Overview of Guidance


WHY NOW?


EEOC’s E-RACE Initiative

• E-RACE (Eradicating Racism and Colorism in Employment)

►Since 2007, the EEOC has been in the process of

identifying “issues, criteria and barriers” that contribute to

race and color discrimination in the workplace.

►Part of these effort involves systemic initiative to

evaluate pre-hire processes and other selection and

testing criteria.

►El v. SEPTA (SE PA Transportation Authority) (3d Cir. 2007)


EEOC’s E-RACE Initiative (Cont.)

• The EEOC’s argument

► National data supports that use of criminal history has “disparate impact” on certain minority groups based on race and national origin.

►Disparate Treatment -- typical Title VII analysis

►Disparate Impact -- Argument is that people of certain races and national origins are arrested more frequently than others outside of those groups and/or have negative credit information; thus, employers using such information cause a disparate impact on certain minority groups.


Disparate Impact

• Disparate Impact: Title VII of the Civil Rights Act of 1964

►Facially neutral policy

►Has adverse/disparate impacts on certain protected groups.

• 42 U.S. C. §§2000e-2(k)(1)(A)(ii) & (k)(1)(C); Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971).

• Aggrieved party must show statistical disparate impact

►EEOC Guidance assumes there is a disparate impact unless employer

can show evidence that there is not

►Guidance states it will NOT be enough to show diverse workforce

►Will look at employer’s reputation in community for exclusion of people

with criminal records, recruitment practices, and publicly posted

notices.

• Burden then shifts and Employer must prove “business

necessity”/job relatedness AND no other less restrictive means of

obtaining the same information


Public Meeting

• Public Meeting Held April 25 at 9:30 a.m. EST

• Vote:

►Not surprisingly, not unanimous

►4 Commissioners in favor; 1 opposed

• Commissioner Barker (R) opposed

• Opening statements

►Discussed disparate impact and high number of incarcerations

►Also discussed disparate treatment issues with 90% of

companies conducting background checks for employment

►“Hundreds” of charges pending


Overview of Guidance


Non-Legal Challenges to the Guidance

• April 2 U.S. Chamber of Commerce Letter ► Seeking notice and comment period and review by OMB

► Concerned about guidance limiting employers’ use of criminal history

• April 19 Senator Enzi letter ► Demanding that the EEOC not issue guidance until

• Guidance publically circulated

• Comment period allowed

• OMB has opportunity to review

• April 19 Industry Letter ► Signed by over 47 associations and industry groups

► Seeking notice and comment period

• House of Representatives Appropriations Bill ► Passed on May 9

► Amendment limiting funds from being used to “administer and enforce” Guidance


No Bright Line Rules Allowed

• No Bright Line Rules

►“We don’t hire felons”

• Factor test based on Green

• EEOC gives more detail to what the 3 factors mean:

►Nature and gravity of the offense

• the harm caused

• the legal elements of the crime

• the classification of the offense (e.g., misdemeanor vs. felony)

►Time since the conviction and/or complete of the sentence

• includes evaluation of recidivism

►Nature of the job held or sought

• more than just job title

• evaluation of specific duties, essential functions, and environment


Individualized Assessment

• Individualized Assessment ►EEOC recommends an “individualized assessment” of applicants

►Though not “required”, employers will need to evaluate if there are any criminal offenses that have a “demonstrably tight nexis to the position in question” such that an individualized assessment may be circumvented.

►Evidence an employer should review: • facts or circumstances surrounding the offense or conduct;

• number of offenses for which the individual was convicted;

• older age at the time of conviction, or release from prison;

• evidence that the individual performed the same type of work, post conviction, without any known incidents of criminal conduct;

• length and consistency of employment before and after offense;

• rehabilitation efforts;

• character references; and

• whether individual is bonded under a federal, state, or local bonding program.

►Large change for employers


Individualized Assessment Options

►May be able to use CRA to assist in gathering /get some information

• education/employment information

• request additional information in pre-adverse action

• telephone call/discussion

• applicant submit written submission

►Consider timing of individualized assessment:

• On application

• During interview

• After interview

• After background check completed

►Record keeping

• worksheet

• excel spreadsheet/master list


Ban The Box

• What an Employer Can Ask An Individual About Criminal

History

• Guidance recommends not asking about arrest or

convictions on job applications

• Only ask about convictions relevant to a specific job

• Still want falsification argument.

►Practical effects:

• Different employment applications/criminal history questions

• Ask later in the process?

• before or during the interview

• after an interview

• after conditional offer


Arrest Records

• Arrest Records

►Guidance indicates use of arrests has a per se disparate impact

►Use of arrest records is not job related or consistent with

business necessity.

• Employers may base a hiring decision on underlying conduct if the

conduct makes the individual unfit for a position.

• Only way an employer will learn about the conduct is to either:

• investigate; or

• Talk to the individual

• Examples indicate that an employer can put an individual on an

unpaid administrative leave during the investigation.

►Does not distinguish between charges that are pending with a

court date or older charges with no prosecution


Compliance with Other Laws

• Acknowledges that compliance with “federal laws and regulations”

disqualifying convicted individuals from certain occupations is a

defense to charge of discrimination.

►Convictions of theft and fraud that disqualify in the financial services

industry.

►Denying employment based on failure to obtain a federal security

clearance—if the clearance is required for the job.

• Complying with state and local laws and regulations will not shield

employers from Title VII liability due to Title VII pre-emption of state

and local laws.

• Employers should evaluate whether other laws on which they may

be relying as a defense to run specific criminal history or eliminate

an applicant/employee are preempted by Title VII.


Summary of Guidance

• Employers will likely show job related and consistent with business necessity if it can prove either that: ► It validates the use of specific criminal history by having

data or analysis about criminal conduct as related to subsequent work performance;

• Given lack of clear studies, may require I/O psychologist

OR

► It develops a targeted screen considering the following:

• Nature/gravity of the offense

• Time since conviction and/or completion of the sentence; and

• Nature of the job held or sought

(These are the SAME factors that have been in effect since 1987)

• With an individualized assessment to determine if job related

PRESENTATION TITLE

An FCRA Primer

The Fair Credit Reporting Act

Applies In More Contexts Than You Might Imagine

Cindy D. Hanson

Kilpatrick Townsend & Stockton LLP

[email protected]

(404) 815-6500

22

The FCRA and Background Checks

• The Fair Credit Reporting Act (“FCRA”) outlines detailed

procedures that must be followed when consumer reports,

including credit reports and criminal background checks,

are used for employment purposes.

• Adherence to these procedures is important because the

FCRA provides for statutory damages of $100 to $1,000

for each willful violation of the statute, making the

exposure for a company potentially catastrophic.

• Indeed, recent settlements of FCRA class actions

involving employee background checks have numbered in

the tens of millions of dollars.

23

An FCRA Primer

• The FCRA requires that certain procedures be followed when a

“consumer report” is used for employment purposes. 15 U.S.C.

§ 1681 et seq.

• Under the FCRA, a consumer report is a written, oral or other

communication of information by a consumer reporting agency

that bears on a consumer’s credit worthiness, credit standing,

credit capacity, character, general reputation, personal

characteristics, or mode of living that is used or expected to be

used or collected for establishing the consumer’s eligibility for

personal credit or insurance, employment, or other purposes

authorized by the FCRA. 15 U.S.C. § 1681a(d).

• Thus, a consumer report is much broader in scope than just a

credit report or a background check—it includes criminal and civil

records, driving records, civil lawsuits, reference checks and

other information obtained by a consumer reporting agency.

24

• An employer’s duties vary at each stage of the hiring

process when a background check or other

consumer report is used.

• The disclosure form;

• The applicant or employee’s written authorization;

• Dealing with a derogatory report;

• Taking an adverse action.

Duties of Employers Who Intend to Use Employee

Background Checks

25

• The FCRA requires that a company disclose to the

applicant or employee that a background check will

be obtained for employment purposes. This

disclosure must be made in a document that consists

only of the disclosure. 15 U.S.C. § 1681b(2)(A)(i).

• In other words, the disclosure form should be a single

page consisting of only the text necessary to inform

the applicant or employee that the employer intends

to obtain his criminal background check or other

consumer report.

The Disclosure Form

26

• The FCRA also requires that the employer obtain the applicant’s

or employee’s written authorization to procure a background

check or consumer report. The FCRA allows the employer to

include this written authorization, typically a signature line

confirming that the consumer report has been authorized, on the

disclosure form described above. FTC Opinion Letter, Steer,

October 21, 1997, http://www.ftc.gov/os/

statutes/fcra/steer.shtm.

• Nothing more than the disclosure and written authorization

may be on the form. 15 U.S.C. § 1681b(2)(A)(ii) (emphasis

added).

The Applicant or Employee’s Written Authorization

Investigative Consumer Report

• If the employer is also having a consumer

reporting agency conduct interviews with prior

employers or gather others types of

information via interviews, the employer is

obtaining an “investigative consumer report.”

• For such a report, the FCRA requires

additional disclosures be made to the

applicant. See 15 U.S.C. § 1681d (a) and (b).

27

28

• When a report contains information that could negatively

impact an individual’s eligibility for hire or promotion, the

FCRA requires that certain steps be taken by users of

background checks or other consumer reports in the

employment context. It is of the utmost importance that

these steps be completed before any “adverse action” is

taken with respect to the applicant or employee.

• An “adverse action” is defined broadly under the FCRA

and includes, among other things, an employment denial,

termination, or any unfavorable change in employment.

See 15 U.S.C. § 1681a(3)(k).

Dealing with a Derogatory Report

29

• An entity considering taking adverse action based in

whole or in part on a background check must do the

following, before taking the adverse action:

– Provide the applicant or employee with a copy of

the background check or other consumer report.

– Provide the applicant or employee with a summary

of his rights under the FCRA, as prescribed by the

Federal Trade Commission. See FCRA Summary

of Right, http://www.ftc.

gov/bcp/edu/pubs/consumer/credit/cre35.pdf

Dealing with a Derogatory Report (cont.)

30


• The summary of rights includes:

– Notification that the applicant or employee is entitled to receive a free copy of the background check or consumer report on which the adverse action was based. The applicant or employee has a 60-day period in which to obtain his free report, and the employer’s notice to the applicant or employee must so state. The name and contact information for the consumer reporting agency that provided the background check on which the adverse employment decision was based. The contact information provided should include the name, address, and phone number for the consumer reporting agency. If a toll-free telephone number is available for the consumer reporting agency, it should be provided to the applicant or employee.

31


– A statement advising the individual that the

consumer reporting agency did not make the

adverse employment decision and cannot,

therefore, provide any reasons why the adverse

action was taken. 15 U.S.C. § 1681m(a)(1)-(2). \

• 15 U.S.C. § 1681b (3)(A).

32

• The purpose of this pre-adverse action notice is to

provide the consumer with an opportunity to dispute

and correct any inaccurate information in the

background check and thereby avoid the adverse

employment action that the employer might take

based on the report.

The Pre-Adverse Action Notice’s Purpose

33

• After providing the pre-adverse action notice described above,

the employer must wait a reasonable period of time before

taking any adverse action − typically declining to hire or promote

the individual − based in whole or in part on information in a

background check.

• Upon taking an adverse action, the employer must provide

notice to the consumer of the action. This is a second, distinct

notice from the pre-adverse action notice described above.

Such notice may be provided orally, in writing or electronically.

• The notice to the employee or applicant must disclose that

individual’s right to dispute information in a background check

with the consumer reporting agency that furnished it. 15 U.S.C.

§ 1681m(a)(3).

Taking an Adverse Action

State Law and Other Compliance Issues

Lester Rosen

Attorney at Law

Employment Screening Resources (ESR)

415-898-0044

www.ESRcheck.com

[email protected]

http://www.esrcheck.com/

mailto:[email protected]

State Law Complications

• In addition to federal Fair Credit Reporting Act (FCRA), at least 21 states arguably have stricter FCRA rules

• Many states have additional rules on the use of criminal records – Some rules prevent a screening firm from reporting criminal information in

the first place (e.g. seven year rule) – Some states prohibit an employer from using information that a screening firm

may report (e.g. arrest records) – Number of states have discrimination laws impacting criminal records – Numerous state and local laws regarding criminal records and eligibility for

public employment or licenses that may be an issue under new EEOC Guidance

– Eight states now have rules regulating credit reports – States are increasingly looking at laws about access to social networking sites

• Best practice: have your screening firm only report what you can legally use in your state

www.ESRcheck.com 35

States that arguably have stricter state FCRA rules

• Arizona

• California

• Colorado

• Georgia

• Kansas

• Kentucky

• Louisiana

• Maine

• Maryland

• Massachusetts

• Minnesota

• Montana

• New Jersey

• New Hampshire

• New Mexico

• New York

• Oklahoma

• Rhode Island

• Texas

• Washington

• Nevada?

www.ESRcheck.com 36

Examples of State Rules

• At least 11 states have a 7-year limit on criminal records – some states have an exception if applicant has a higher income level (but Texas and Colorado pre-empted by FCRA and Nevada is unsettled)

• Various states have special rules for: – Disclosure form for consumer – Rules for Investigative Consumer

Reports – Nature and Scope letter – Disputed Accuracy procedures – Timing and notice of reports – Notification periods

• Other examples:

– CA-numerous “only in California rules”

– MA-final adverse action letter must be in 10 point type minimum within 10 days with specified language

– NJ-special notifications of reason why dispute is frivolous

– NY-corrected copy rule

www.ESRcheck.com 37

Examples of State Criminal Rules • Some states limit employers

from using arrests, such as California, Hawaii, Illinois, Massachusetts, Michigan, Nevada, New York, Pennsylvania, Rhode Island, Utah, Virginia, Washington, and Wisconsin (also an issue under the EEOC)

• Some states limit expunged or sealed records, such as California, Colorado, Hawaii, Illinois, Louisiana, Maryland, New Jersey, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, and Virginia

• Some states limit first offense records, records based upon a certain age (other than a seven year limit) or diversion/non-adjudication programs, such as California, Georgia, Hawaii, Illinois, and Massachusetts

• Some states place limits on EMPLOYERS, such as California, Hawaii, Illinois, Massachusetts, Michigan, Nevada, New York, Pennsylvania, Rhode Island, Utah, Virginia, Washington, and Wisconsin

www.ESRcheck.com 38

Sample States with Employer Limitations on Convictions/Arrests

• Many states have rules reflecting EEOC guidelines – arrest or conviction must have rational relationship to job given nature and gravity of the offense, nature of the job, and age of offense

• Case in point: New York goes beyond “Green” factors in listing criteria and includes various notice requirements

• EEOC Guidance emphasizes that state rules concerning eligibility for public jobs or licenses can be discriminatory and violate Title VII

– Employers placed in potential Catch-22 between state/local requirements and EEOC

www.ESRcheck.com 39

Choice of Law

• Issue – which law applies anyway • Key issue for employers with facilities in multiple states that

have different rules • General rule of thumb – law of the state where the job occurs

(but arguments can still be made to use law where applicant resides if different)

• 2010 case in New York on age discrimination helps clarify – Plaintiff terminated in Atlanta, tried to sue in NY where

decision was made and where law was more favorable for age discrimination

– Highest NY court ruled 4-3 that there was no jurisdiction since the IMPACT was not in NY

www.ESRcheck.com 40

The Use of Databases

• Commercial criminal databases can be very valuable since they contain millions of records

• Can be argued that failure to use a database is negligent

• But one of the biggest areas of criticism against screening is “false positives” based on a database use where there is no re-verification at courthouse (as required in California)

• See http://www.concernedcras.com/ on responsible database use

• Issues with FCRA section 613 notice and TIMING

• Best use of commercial database is as a “lead generator”

www.ESRcheck.com 41

http://www.concernedcras.com/

Credit Details, Urban Myths & Accuracy

• Credit reports ran on finalists – not all applicants

• Credit report used to decide who not to hire, not a tool to keep people from the workforce

• Urban myth – employment credit reports DO NOT contain credit scores, but only credit history

• Also does not have age, and does not impact credit score

Credit Concerns

• Credit reports can appear to invade privacy and potentially be discriminatory unless measures taken to ensure their use is fair, accurate, and relevant

• Potential discrimination: EEOC held meeting on topic, and expected to produce new guidance

• Can have errors or not tell the whole story: • Refinance situation • Confused with someone else • Credit card used for child’s health care

Some States Limit Credit Report Checks

• Eight states have currently passed laws restricting credit report checks: • California • Connecticut • Hawaii • Illinois • Maryland • Oregon • Vermont • Washington

• Best Practice: Approach with caution and use only for positions where there is a business justification based upon the job

Using Social Networking Sites • Use of social networking checks on the rise to avoid

problematic hires • Issues:

– Can expose employers AND recruiters to discrimination claims if internet search reveals protected data such as nationality, race, religion, age, or medical issue

– Issues of appearance, grooming, or religious affiliations revealed by photos

– Is there a reasonable expectation of privacy based upon the terms of use and generally accepted standards?

– Legal off-duty conduct – Issue of identifiers and authenticity – is it really your applicant? – Can employers require applicants to provide a password or allow

“shoulder surfing”

www.ESRcheck.com 45

Some Social Media Solutions • Have job description with the essential functions of the job

and the knowledge, skills, and abilities needed • Have documented training in discrimination • Establish standard practice to show decision made on

objective basis without use of illegal criteria • Perform through an employee behind an “ethics wall” that

does not make hiring decisions, that filters out material using standardized procedures, and only provides job related data to the decision makers after there has been an offer

• Do not let decision makers view unfiltered internet/social media data

• Consider showing negative material to applicant first • Should a background screening firm perform the task?

• FCRA issues leaves this an unsettled area

www.ESRcheck.com 46

New: Accreditation for Screening Firms

• In 2010, the National Association of Professional Background Screeners (NAPBS®) instituted an intensive Background Screening Agency Accreditation Program (BSAAP)

• Rigorous third party audit related to six critical areas: 1. Consumer Protection 2. Legal Compliance 3. Client Education 4. Product Standards 5. Service Standards 6. General Business Practices

• NAPBS accreditation becoming only practical means of third party verification of professionalism and competency of screening firm

www.ESRcheck.com 47

Bottom-line

• Background checks are mission critical for any organization to protect itself and to demonstrate due diligence

• However, subject to increasing regulation, litigation and legislation

• Need to perform background checks, but need to ensure done in a legally compliant manner

www.ESRcheck.com 48

About the Speaker • Attorney Lester S. Rosen is Founder and CEO of

Employment Screening Resources (ESR), a nationwide background screening firm accredited by the National Association of Professional Background Screeners (NAPBS)

• He is a frequent speaker nationwide on the topics of background screening and due diligence

• He is the author of “The Safe Hiring Manual,” the first comprehensive guide on background screening.

• He has qualified and testified as an expert in court cases, has testified before the California Legislature on laws relating to background checks, and is rated A.V. by Martindale-Hubbell

• He was the chair of the steering committee that founded the NAPBS (www.napbs.com), and served as the first co-chair

www.ESRcheck.com 49

http://www.napbs.com/

Best Practices for

Employers to

Minimize Risk

51 | © 2012 Seyfarth Shaw LLP

Employer Best Practices

• Review Employment Applications (ie: Ban the Box)

• Review Background Screening Policies/Procedures

• Disclosure and Authorization forms

• Adverse Action Process

• Review and narrow the positions for which you are

running credit checks

• Accounting/Finance

• HR

• Information Technology


Employer Best Practices (con’t)

• Run credit checks only after conditional offer of

employment/ or after interview

• Consider state laws for credit (8 states)

• In addition to FCRA requirements, discuss concerns with

applicant/employee


Other Common Questions From

Employers

• What criminal history information can be used to make

an employment decision?

• What background checks should they be conducting

• Job related requirements (WI, NY, PA, HI, KS, MO)

• On whom should the checks be run? (whole workforce,

executives, specific departments)

• Should they have a policy (who adjudicates, specific

parameters or case by case?)

• HI does not allow pre-employment screening except for

very specific jobs


Best Practices for Background Checks

• What should a background check include?

• What may a company legally ask for in a search?

• What is unlawful?

If you don’t know what you are getting when you

order a background check, you probably won’t get

what you need, and you may create liability for your

company



A good CRA will search for records in a variety of

locations:

• County courthouses

• State criminal records repositories

• The federal Integrated Automated Fingerprint

Identification System

• Private databases maintained by some criminal

background checking companies

• Each of these sources contains different information

which may be relevant to your background check.



How to get a good background check

1. What to ask for from the applicant (Identifiers)

• Full Name (including maiden, middle, previous, aka)

• Date of birth

• Social security number (properly maintained in a secure location)

• Driver’s license number

2. What to ask for from the CRA

• Search methods (including sources in consults and frequency)

• Who performs the search? Who reviews the information after it is

collected? (Usually a search company will hire “runners” to go to

various court houses and collect data)

• Turn-around time for a search (should be three days or less)

• How it handles incomplete or inaccurate records



Generally, consumer reports may not contain:

1. Bankruptcies that pre-date the report by ten (10) or more years;

2. Records of arrest or civil proceedings that pre-date the report by more than seven (7) years or until the governing statute of limitations has expired;

3. Paid tax liens that pre-date the report by more than seven (7) years;

4. Accounts placed for collection that pre-date the report by more than seven (7) years; or

5. Any other adverse item of information (excluding criminal convictions) that pre-date the report by more than seven (7) years. 15 US.C. § 1681c(a).

BUT: Just because information is legally contained in a consumer report, that does not mean the employer is legally allowed to use it in an employment decision!!!



State law controls what information an employer may

consider when making an employment decision.

• For example, at least 12 states prohibit an employer

from using an applicant’s arrest record when making an

employment decision.

• Most states also restrict an employer’s use of criminal

records that are sealed, annulled, expunged and/or

pardoned by the governor.

IF YOU ARE NOT ALLOWED TO USE IT, DO NOT ASK

FOR IT!

©2012 Seyfarth Shaw LLP 59

EEOC Guidance Best Practices

GENERAL

• No Bright line policies

• USA Fact can assist with applying criteria, but EEOC does not like

ineligible without factors and individualized assessment

• One size fits all will likely be challenged

• Train managers, hiring officials, and decision-makers

about Title VII and its prohibition on employment

discrimination;

• share guidance and draft policies that are in accordance


Best Practices

DEVELOPING A POLICY • Develop a narrowly tailored written policy and procedures for screening for criminal

records; • Only request information that is job related from a background screening vendor

• Identify essential job requirements and the actual circumstances under which the jobs are performed; • Only ask about and request criminal history information that is job related to those

requirements.

• Determine the specific offenses that may demonstrate unfitness for performing such jobs; • Identify the criminal offenses based on all available evidence;

• Review studies, seminars, etc.

• Determine the duration of exclusions for criminal conduct based on all available evidence; • Individualized damage assessment

• Record the justification for the policy and procedures; • Note and keep a record of consultations and research considered in crafting the

policy and procedures. • Train managers, hiring officials, and decision-makers on how to implement the policy

and procedures consistent with Title VII;


Best Practices

QUESTIONS ABOUT CRIMINAL RECORDS

• When asking questions about criminal records, limit

inquiries to records for which exclusion would be job

related for the position in question and consistent with

business necessity.

• Consider timing of the criminal history question so as not

to chill applicants from applying.

CONFIDENTIALITY

• Keep information about the criminal records of

applicants and employees confidential (only use it for the

purposes for which it was intended).

pre-employment background screening after...

Documents