Your Prospective Employee Has a Criminal Record. (Now What?)

So you think you have a great candidate for your open position. This person has all of the necessary qualifications, a great-looking resume, the interview was textbook perfect, and suddenly you get a call from your background screening company. “Bad news,” they say. “There’s a problem with your candidate’s criminal record.”

Frustration begins to set in, with a measure of self doubt as it’s friend. You thought you had a good read on people. You thought you could see a criminal from a mile away. You believed this candidate was well-suited for the job. Now you’re questioning your own judgment, replaying every conversation you had with this individual, looking for clues as to what you may have missed, dreading the fact that you’ll have to press rewind and find someone else…

STOP!

Before you get all worked up, there are a few important steps you need to walk through. These steps are not only important, they are REQUIRED — and for good reason. You might discover the following:

1. Despite having a criminal record, this person may still be right for the job.
2. In flat out denying this person a job you could be opening yourself up to discriminatory behavior.

How to Handle the “Potential Employee with a Criminal Record” Situation: First, don’t hang up the phone. Just because there’s a criminal record doesn’t mean you can or should cut off the prospective employee. If you have a screening policy in place, now’s the time to refresh your memory as to the criteria your organization has established for this particular position. In other words, you need to determine whether denying employment to this individual would be consistent with your company’s employment screening policies.

To assess this, you’ll probably need to ask your screening company a few questions (which is why staying on the phone is important). You’ll want to know the nature of the crime committed and how long ago the crime took place, among other details.

With information in hand, you’ll turn to your employment screening policy. The policy should address, among several other things, the following:

• How results of any background check should be applied in a consistent and equitable manner across all applicants.
• The criteria that be used to distinguish “acceptable” from “unacceptable” screening results.
• What to do if you decide based on the background report, not to hire the individual.

If for some reason your screening policy fails to consider these details (or if you’re lacking a policy altogether), you’ll have some extra work to do:

1. Consider the nature of the job for which the individual will be employed: Are you hiring a secretary who will have primarily supervised duties with no access to sensitive information? Or are you hiring a home healthcare worker who will be given a significant level of autonomy? The nature of the job makes a big difference as to the leeway you can afford a given candidate.

2. Consider the nature and gravity of the offense for which your applicant was convicted. Armed robbery and petty theft are two entirely different crimes and present vastly disparate risks.

3. Consider the amount of time that has passed since the criminal activity took place and find out whether the individual has served the required sentence for his or her actions. Finding out your candidate was arrested for being drunk in public 6 years ago may have no bearing on the person’s ability to perform their job today. However, learning that your candidate was convicted of a DUI last November will likely affect your decision to hire the individual as a school bus driver.

Don’t Forget the EEOC when Considering Criminal Records: Keep in mind, the suggestions above do not just come from our own personal opinions. In fact, the Equal Employment Opportunity Commission has developed very strict EEOC guidelines surrounding an employer’s use of criminal records in the hiring process. The EEOC states that employers must consider:

• the nature and gravity of the offense or offenses for which the applicant was convicted;
• the time that has passed since the conviction and/or completion of the sentence;
• and the nature of the job sought.

In other words, it’s NOT okay to deny employment to anyone and everyone with a criminal record, even though – yes – there are many jobs where an individual with a criminal past would present too great of a risk to employ.

Where does this leave your prospective employee? If the results of the efforts described above leave you with a probable “no hire” decision, your screening provider will likely advise you of your duty to submit a “pre-adverse action letter”. This letter along with a “Summary of Your Rights under the FCRA” are statutory and are intended to provide prospective employees with an opportunity to understand why they may not be hired on the basis of their criminal record and it gives them a chance to respond to or correct any possible mistakes in the criminal report. After a reasonable amount of time, assuming you have not received an acceptable response from the candidate, you are then required to send an “adverse action letter.” This is the official notice to the applicant that based on information contained in a Consumer Report you are denying them employment.

Your background screening company should offer to handle these adverse action duties on your behalf for a small fee.