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Background Checks

The Proper Use of Criminal Records in Hiring

Employers today face great challenges when considering applicants with criminal records.  If they hire someone with a record who commits a new offense against other employees or customers, employers can be sued for negligent hiring.  If they refuse to hire people with records, they may in violation of anti-discrimination.  And, even if they make every decision correctly, they can be liable under the Fair Credit Reporting Act if the process isn’t right.  The problem is made more difficult by the fact that one in four adults in America now has a criminal record.

The best practices are designed to help employers navigate this legal minefield and determine which applicants with records would make good employees.  Following them also enlarges the pool of qualified applicants and helps increase diversity.

These best practices were developed by a group of background checking companies and civil rights organizations.  They have the support of the EEOC, Department of Justice, and Department of Labor.

The first practice is to only consider convictions that are job related.  A DUI conviction may be a disqualification for a job driving a motor vehicle, but not for an office job.  A theft conviction is relevant for a job that involves unsupervised access to cash, but not for a factory job.

Number 2, don’t ask about criminal records on the application form.  Criminal records are a stigma.  It’s easier to think about whether an applicant’s record disqualifies them when you’ve had the opportunity to interview them and, ideally, check their references.

Use a qualified Consumer Reporting Agency (CRA).  Not all CRAs are equal.  You don’t want to lose a promising applicant because your CRA made a mistake.  Ask prospective CRAs whether they require all available information about an applicant and a criminal record to match before they report it.  And ask them if they confirm information from data bases and other secondary sources with the original criminal justice record.  Don’t select a CRA based on low price alone.  Losing good applicants, or hiring the wrong ones, costs far more than the amount you save by using a second rate CRA.

Tell the CRA to report only relevant convictions.  Decide in advance what convictions are relevant to the job in question and ask the CRA to report only those convictions.  There’s no reason to collect information you consider irrelevant, especially when it’s prejudicial.

Last, give the applicant a chance to respond to the CRAs report and consider the entire person.  The CRA may have made a mistake.  Or an applicant’s conduct since the conviction may convince you that they are a good hire; especially if their job record is strong.  If you’re hiring for a sales position, the best salesperson may be the best hire, even if they have a record.

This is only a fast overview of the best practices.  Does anyone have questions?


Lew Maltby, National Workrights Institute Lmaltby [at] workrights [dot] org

Best Practices- Short Form.pdf1.34 MB
Best Practices- Final2.pdf3.91 MB
Best Practice Standards Criminal Background Checks.pdf51.53 KB