Regardless of the industry or the current state of the economy, conducting a criminal background screen on employment candidates has become standard practice for many employers. It is not so much the practice that presents the issue as it is the potential result. To that point, the critical question becomes, what does an employer do if the background check reveals a criminal record?
Federal employment discrimination law does not prohibit employers from requesting or obtaining criminal history information about applicants and employees. However, an employer’s use of such information could result in a claim of discrimination if:
Simply put, even if an employer does not intend to discriminate, a general policy that screens out applicants and employees based on particular offenses, the effect of which disproportionately screens out applicants of a particular race, ethnicity or other protected class, may constitute illegal discrimination. How then does an employer screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination?
The Equal Employment Opportunity Commission (EEOC) has advised that in deciding whether a particular offense can be used to exclude applicants, withdraw job offers, or terminate an employee, the employer must consider:
In addition to federal law, many states provide their own protections against discrimination in hiring and employment practices based upon arrest and conviction records. Under Wisconsin law, for example, employers are precluded from discriminating against employees on the basis of an arrest or conviction record, unless the employee’s arrest or conviction record is substantially related to the employment. A criminal record is “substantially related” to employment if an overlap exists between the circumstances of the job and the circumstances of the offense, e.g. a theft conviction and a cashier position, a drunk driving offense and a truck driving position, and so forth. Conversely, a drunk driving offense would likely not be substantially related to a cashier position. In short, a conviction record that is not substantially related to the employment should not be given any consideration by the employer in the hiring process.
Under Wisconsin law, in order to determine whether a conviction is substantially related to employment, the employer may ask about the circumstances of a conviction during the interview process (the employer is not permitted to inquire about arrests that did not result in conviction, aside from pending charges). If the employer determines that the conviction is substantially related to the employment, the employer may decline to extend an offer of employment to the applicant. However, the employer should obtain sufficient information to support its conclusion in the event the applicant files a complaint and the employer is forced to defend its position.
Different laws may apply depending on the states in which you operate; you will need to review the employment laws of the states in which your offices and employees are located to ensure you remain compliant with each state’s anti-discrimination laws.
Anissa works with employers to provide practical solutions to employment law and compliance matters. She provides employers with guidance pertaining to all aspects of employment law, including employee benefits, insurance, and HR policies and procedures.
Anissa works with employers to provide practical solutions to employment law and compliance matters. She provides employers with guidance pertaining to all aspects of employment law, including employee benefits, insurance, and HR policies and procedures. As a litigator, Anissa previously represented insurers and insureds in numerous aspects of insurance defense practices and insurance companies on coverage issues. Anissa now focuses her career in the corporate setting, with an emphasis on employment contracts, insurance, HR management, risk management and regulatory compliance. As part of the HR Solutions Team, Anissa is dedicated to educating employers of all sizes on employment law and compliance matters.
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