Employer Background Checks: Can Criminal History Play a Part in Hiring?

Concerned employees looking at information on a computer

You want to keep your business safe, but not at the risk of denying a worthy candidate a fair shake. Should you run an employer background check? Can you?

An employer background check is often conducted when a business is deciding whether to hire a candidate. But, are you allowed to ask about criminal history on your job applications?

In fact, 29 states and more than 150 cities and counties have adopted ban the box workplace rules, which place certain limitations and restrictions on employers who seek to inquire about an employee or applicant's criminal history. Additionally, according to the National Employment Law Project (NELP), many jurisdictions have adopted workplace policies on criminal background usage. For example, the U.S. Equal Employment Opportunity Commission (EEOC) has extensive enforcement guidance on what is acceptable and what isn't under Title VII of the Civil Rights Act of 1964.

So, when should (or shouldn't) you ask about criminal convictions?

Considerations in Ban the Box Jurisdictions

Currently, over two-thirds of the American population, or 223 million people, live in jurisdictions that have adopted ban the box policies, according to NELP. If your business is located in one of these jurisdictions, then your organization should understand the state or local rules applying to an employer background check during the hiring process.

Here are some things to consider in "ban the box" jurisdictions:

  • Jurisdictions differ on when the employer may ask about a criminal conviction. Some states and local jurisdictions prohibit employers from asking about conviction history on job applications, while others defer inquiry until later in the hiring process. This may be after the first interview or after the employer extends a conditional offer of employment.
  • Employers may be restricted as to the scope of criminal record questions. For example, you may only be able to ask about convictions within a certain number of years (e.g., the past five years) or be prohibited from asking about or taking into consideration sealed or expunged records.
  • No federal law prohibits asking about criminal history. However, the EEOC echoes a number of state and local laws by recommending that employers remove this question on job applications. Later in the pre-employment process, when employers can ask about criminal backgrounds, such questions should be "job related and consistent with business necessity," according to EEOC guidance.

When Using Background Checks, What Can an Employer Not Do?

According to the EEOC, employer background checks may not differ based upon a person's race, national origin, color, sex, religion, disability, genetic information or age. Employers also may not exclude individuals with criminal records from consideration if doing so would disproportionately impact individuals in a protected class and the exclusion was not job related or consistent with business necessity.

What Should a Company Do When Criminal Activity Is Revealed?

The EEOC instructs employers to develop a targeted screen that will consider the nature and gravity of the offense, the time elapsed since the violation, and nature of the job position. According to the EEOC, once a potential concern has been revealed, a business should validate the criminal conduct, if possible. This may mean running a background check. The employer may also conduct an "individualized assessment" for candidates excluded from consideration to determine if the criminal conduct is job related and consistent with business necessity.

When hiring or taking any adverse action against an employee — whether during the application process, or in the course of employment — businesses must be aware of federal, state and local rules applicable to criminal records and apply these rules to their hiring and other employment processes. Employers have the discretion to hire the most qualified candidate. However, ban the box policies allow employers to expand the pool of potential candidates by focusing on qualifications, not the candidate's past.