Considering an Applicant With a Criminal Record

According to the U.S Department of Justice’s Bureau of Justice Statistics (BJS), over 90 million individuals, approximately 30% of the population in the country, have a criminal record on file in state criminal history repositories.  

This statistic does not include traffic infractions (e.g., improper turns, parking violations, failure to stop, some speeding violations, among others) which are the most common form of infractions and also do not appear in criminal records (when they are paid, or the court citation was fulfilled), because traffic tickets are classified as infractions and are considered non-criminal offenses.  

Misdemeanors (e.g., Driving Under Influence (DUI), disorderly conduct, use of controlled substances, simple assault, among others) are more serious offenses than infractions and appear in criminal records. In some circumstances, a misdemeanor can escalate to a felony. Felonies are the most serious types of crimes (e.g., DUI that causes injury, serious bodily injury or death, murder, robbery, aggravated assault, rape, among others). Like misdemeanors, felonies also appear in the criminal history on file in state criminal history repositories.  

Criminal records vary from one-time arrest, where charges may be dropped completely, to violent, serious, and lengthy criminal histories. The BJS statistics show that the majority of arrests are for non-violent and minor offenses, only 4% of the arrests are for felonies, and most arrests, both misdemeanors and felonies, do not end in a conviction.  

According to the Society for Human Resource Management, nine out of ten employers run criminal background screens on applicants as part of their hiring process. Employers require consumer reports in order to ensure a safe work environment for employees and to assess the overall trustworthiness of the job candidate. Background screenings also reduce theft, embezzlement and other criminal activity. Some background screenings are required by state law for a position such as a teacher or licensed medical practitioner. Employers are not only protecting the company’s reputation but are also reducing the risk of legal liability for negligent hiring. Thus, in the selection process, some companies reject applicants who have criminal charges. 

Employers should be aware that it is highly likely that consumer reports may have negative information about the applicants. In these instances, a greater understanding is important to dispel some employers’ myths or paradigms. “The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges or the charges are dismissed,” according to the Equal Employment Opportunity Commission (EEOC). By contrast, records of convictions of crimes will usually serve as sufficient evidence that a person engaged in improper conduct.  

Finding a point of balance and justice between millions of people with criminal records at the time of getting a job and the legitimacy of the employers to not consider an applicant for employment based on their criminal records, has become a great challenge. The law, jurisprudence, and institutions like the EEOC have all weighed in on this situation.  

First, the Fair Credit Reporting Act restricts Consumer Reporting Agencies (CRA’s) reporting any non-convictions older than 7 years, unless the applicant is expected to earn 75,000 or more annually [15 U.S.C. 1681c (a) (2) (5)]. Some state laws and local ordinances also restrict CRA’s from reporting non-convictions regardless of age.  

Thereby, the large number of applicants who have criminal records are not marked for life because non-convictions (records of arrest and certain adverse information) are not reflected in the consumer reports with the passage of some years and may not be reported at all. These restrictions create a point of balance between employers and applicants with criminal records. For employers, they can still know relevant information about the applicant, like convictions, and for the applicants because not all the information about their criminal history may be disclosed. SELECTiON.COM® works diligently on compliance with federal and state law regarding these restrictions.  

Second, the jurisprudence has cited three factors that employers shall seriously consider in their hiring policies when the applicant has a criminal record (Green v. Missouri Pacific Railroad, 549 F.2d 1158, 8th Cir. 1977). The three factors are; the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence, and the nature of the job held or sought.  

Finally, the EEOC has consolidated and updated enforcement guidance regarding the use of arrest or conviction records in employment decisions. The guide describes two types of discrimination in employment decisions, disparate treatment and disparate impact. According to the EEOC, disparate treatment means “a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.” For its part, disparate-impact liability may occur when “an employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII and may violate the law if not job-related and consistent with business necessity,” the guide explains.  

It is very important for decision-makers, hiring officials, and managers to know the law, jurisprudence, and the EEOC enforcement guidance to allow employers to make hiring decisions appropriate and equitable, without engaging in discrimination.  

In conclusion, employers are challenged to provide this large number of individuals the opportunity to apply, be considered, and hired for a job. In the end, it is in the employer’s hands to analyze the seriousness of the applicants’ conduct and create a balance between an opportunity and responsible hiring. 

This article gives a general overview of the legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your own legal counsel for all applicant approval matters. 

Article by Adriana Bernal

Adriana Bernal is the Director of Legal Affairs and Compliance at SELECTiON.COM® and regularly deals with FCRA and other background check related issues.