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Dos and Don’ts for Conducting Criminal Background Checks

Background ChecksCriminal background checks can put hiring decision makers between a rock and a hard place. Conducting them in all cases may leave companies open to claims of discrimination, but failing to conduct even one may result in a claim of negligent hiring if something goes wrong.

How can companies navigate the legal waters surrounding background checks? Here is an overview of the top “dos” and “don’ts” when it comes to conducting criminal background checks:

Steps to Take:

  • DO train decision makers about the requirements of Title VII of the Civil Rights Act and its prohibitions on discrimination in employment.
  • DO create a written policy for conducting background checks.
  • DO consider each applicant and his or her background individually. Examine:
    • the specific crime and the facts and circumstances of the applicant’s conviction,
    • the seriousness of the conviction and the number of convictions,
    • the applicant’s age at the time of conviction,
    • the time elapsed since the applicant was convicted or finished his or her sentence,
    • the essential functions and actual working conditions of the job for which the person is applying,
    • the applicant’s ability to hold down similar jobs, willingness to seek rehabilitation, and character or employment references,
    • whether or not the applicant is bonded.
  • DO limit questions about criminal background to items that are related specifically to the applicant’s ability to do the job he or she applied for.
  • DO explain in writing any hiring decision based on background check information.
  • DO keep all criminal background check information confidential.

Steps to Avoid:

  • DON’T use a “blanket” background check policy that eliminates all applicants with any criminal record.
  • DON’T rely on standardized background check services, which may give you information that is not relevant and miss information that is.
  • DON’T ask the applicant about information that is not relevant to the job applied for, even if that information appears on the criminal background check report.
  • DON’T share information about applicants’ or employees’ criminal backgrounds, except where mandated by state or federal law.

Disclaimer: This content is for your information only. It is not intended as legal advice. If you have specific questions regarding the law and how it applies to your business, please consult your attorney.

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