The Most Common Pitfalls to Avoid When Using a Criminal Background Check for Recruitment

The criminal background check is a critical element in the vast majority of hiring processes taking place across the nation. Whenever wrongdoing occurs, "was there a background check?" is always one of the first questions asked. Therefore, it makes good sense to include them in your process—but that's often easier said than done. Are you prepared to avoid possible pitfalls?

Background checks are a regulated form of consumer report, just like credit reports. As such, you will need to contend with issues such as FCRA compliance, to say nothing of state, local, and sometimes even other federal laws. If you don't plan with care and think deeply about how to use background checks correctly, you could run afoul of the law. This is no mere pitfall—it could mean hefty fines, time-consuming lawsuits, and damage to your reputation.

There are personal pitfalls, too—incorrect decisions you might make about how to judge a background check, or using screening methods that could introduce prejudicial information into your considerations. How can you avoid these problems? Let's go over each major element and consider the key facts.

Regulations You Need to Know

What are the major categories of regulation that you need to be aware of so that you can comply with the law? Ultimately, you'll need to know about the EEOC's enforcement of Title VII of the Civil Rights Act, the relevant regulations under the Fair Credit Reporting Act, and state or local Fair Chance laws. 

Equal Employment Opportunity Commission Guidelines

According to the EEOC's own website, the agency's duty is to ensure the fair application of the Civil Rights Act of 1964, specifically Title VII. This is the act that prohibits making employment decision based on the following protected classes:

  • Race
  • Religion
  • Color
  • Sex
  • National origin

Although criminal records are not a protected class, the EEOC and the courts have held that it is unlawful to issue a blanket ban or denial on anyone with a criminal record. This is in part because such efforts can violate the rights of other protected classes in the process. Employers must take care to emphasize fairness in the hiring process by focusing on a candidate's credentials and capabilities in the context of their history.

The EEOC and background checks are related in another way as well. The agency has also established a series of factors to evaluate background check records. More on those below.

The Fair Credit Reporting Act

The Fair Credit Reporting Act, or the FCRA, is a federal law that regulates consumer reports such as credit history and, today, background checks. The FCRA aims to provide the public with protection against the misuse of their personal records. This is why blanket employment bans on criminal record holders are usually unlawful. For employers, the FCRA represents perhaps the single biggest compliance pitfall. Litigious law firms often search for opportunities to nail companies on minor deviations from the law.

Beware of the ‘standalone disclosure’. This is a boilerplate document that states your intention to use a background check along with some other mandatory information. The law and the courts both hold that this must be truly standalone. It must not be attached to other paperwork, and you cannot include anything but the standard language on the disclosure. You must issue this notice before checking any criminal databases.

Additionally, the FCRA mandates a specific process for taking adverse action against a candidate because of a criminal record. This includes an initial notification, disclosure of their report, a waiting period, and additional written notification. To learn more about adverse action and the correct process, use our Learning Center article about the FCRA. Employers must take care to follow this process to the letter.

Ban the Box and Fair Chance Laws

Some states allow employers free rein in the way they use and evaluate background checks, deferring only to federal guidance from the EEOC and FCRA. Many more, however, impose some form of ban the box or Fair Chance law. In these jurisdictions, you may need to conduct job interviews and even make conditional job offers before you can use a background check. These laws may also dictate how you make certain considerations, or bar you from using specific types of records.

Failing to follow these laws can have various consequences. In some areas, you will face the risk of lawsuits from applicants who may claim you denied them unfairly. In others, states and cities impose hefty fines per violation. It is important to be mindful of these rules and to stay abreast of changes in their language, as some legislators frequently tinker with hiring legislation. Even the federal government now has a Fair Chance Act applicable to those contracting to provide services to the government.

To learn more about these laws and to explore information relevant to your area of operation, visit our Learning Center page on ban the box.

Achieving Informed Consent With Your Candidates

According to the FCRA, you must obtain an applicant's written consent to perform a background check. Do not place this form with the standalone disclosure. Instead, after providing the disclosure, supply the form to the applicant. You have more leeway with the information you include on this page. You should explain the purpose of the background check, provide some information on when you will evaluate the check, and include a space for the candidate's signature.

You must collect a consent form from every single applicant before you can use a background check. Don't skip this step; even major businesses have faced class-action lawsuits for failing at this stage.

Is What You Find Relevant to the Job in Question?

How do you determine whether or not the results of your search should impact a candidate's suitability for the role? This is not a simple question with a quick answer. Instead, there are several layers to consider, from substance abuse issues to potentially problematic background checks.

The Presence of DUI Charges

DUIs are complicated crimes to consider because many states charge first, second, and sometimes even third offenses as misdemeanors if there was no property damage. It is important to understand the difference between a misdemeanor DUI and a felony DUI to evaluate the severity of the crime.

Only employers in the regulated transportation industry need to screen specifically for DUI charges. An individual with a DUI who wants to work in a fast food drive-through position as a cashier is not in a position to cause harm. However, someone operating a heavy truck or bus must be a clean and sober driver. Don't overlook this important requirement in your industry. Otherwise, try to evaluate DUI charges in the context of how old they are and how many an individual has.

What to Do About Drug Screening

Drug screening remains a popular tool among employers. Most states have not restricted companies from using drug tests, or from using any positive result as a basis for denial. The exception lies in some states where marijuana has achieved legal status, such as in New York. In such states, you may not be able to test for cannabis or deny jobs based on positive cannabis tests or even off-duty use. It is wise to review your local regulations before ordering any tests or evaluating them.

Otherwise, you remain free to preserve a drug-free workplace. However, even advanced multi-panel drug tests can sometimes return positive results for what is perfectly legitimate medication. Using a service that has a qualified medical resource officer on staff is ideal. This worker uses training and medical knowledge to identify potential issues with drug tests results to alert you before you make decisions. An MRO is an important shield against claims of unfairness.

Evaluating and Adjudicating Background Checks

The way you choose to adjudicate background check results is a matter for your business to decide. It is up to each individual employer to determine what legally permissible circumstances they will define to deny an applicant based on their criminal background check. However, as mentioned, the EEOC has defined a series of factors for employers to consider during this process.

Using these considerations is a smart way to bring more fairness into your process from the start. Taking these questions and concepts seriously—rather than becoming fearful at the presence of any record—is the path towards a better process. Here's what the EEOC says you should consider:

  • The level of seriousness attached to the criminal charge.
  • How much time has elapsed since the individual completed their sentence or committed the crime.
  • The relationship of the crime to the nature of the job in question.

First, the EEOC suggests that you consider whether the crime was of such a serious nature as to warrant consideration in the first place. An employer may not place much weight on an old misdemeanor that only resulted in a fine, for example. Remember, not all criminal records are the same.

Next, time is an important factor. Someone who has a decade-old charge but a clean record since then may warrant different consideration than someone who has a string of recent convictions. Generally, the EEOC believes that the more time that has passed, the less serious an old record may be.

Finally, you should evaluate whether the crime relates to the job in question or would create an undue risk if the person was hired. Someone with a recent fraud conviction might not be a good fit for a job guarding a bank vault, for example. That same person, though, might be fully capable of doing a job without access to business systems or funds. Take all three factors together before making a decision, or risk the potential legal peril over claims of discrimination.

The Allure and Risk of Social Media Screening

Social media remains a minefield for employers. On one hand, social media pages could contain evidence of behavior or patterns of speech that you do not want to endorse as an employer. You may not want to hire such an individual. However, it is also very easy to encounter information that could create the appearance of discrimination in your decision. Separating the useful information from the potentially illegal considerations is very difficult, if not impossible.

Some employers in the past have demanded applicants supply their social media usernames and passwords. Although not explicitly illegal yet, such actions could easily run afoul of the EEOC's regulatory power due to the likelihood of encountering personal and protected information. 

Some third-party providers will screen a candidate's social media, filtering out information related to protected classes to produce a simple report. Others claim to use AI tools to screen candidate social media for problematic keywords. These efforts continue to exist in a legal and ethical gray area. 

In some jurisdictions, such as New York City, it is illegal to conduct non-background check searches on candidates prior to satisfying other conditions of ban the box laws. Many other areas have similar rules baked into their Fair Chance legislation. As such, if you plan to consider social media, you should invest extra time and effort into determining how to do so legally and fairly.

Your Goal: Consistency and Reliability

Looking over all the potential hazards and liability inherent in navigating criminal background check laws can be daunting. However, laws don't change overnight, and it is very possible to create a system that both works and does not expose you to legal liability or the threat of serious mistakes. The solution to those problems is a simple, one word answer: consistency.

Businesses should work to conduct the research necessary to build a policy that is compliant for all the areas in which they hire. A comprehensive policy is not only easier for managers to follow, but it also ensures there is an easy resource to update quickly when or if local laws change. With this policy, you can ensure that every applicant goes through the exact same series of steps.

Be consistent in your application of this policy. Do not make exceptions for one individual when you might deny someone else in the exact same circumstances. Beware of creating pathways to employment that bypass or take shortcuts in your process. The consistent use of a compliant policy contributes to avoiding any appearances of prejudice or discrimination and provides applicants with full access to their rights.

Final Thoughts

When used correctly, the criminal background check is a potent resource to empower your hiring managers with more perspective. However, you must always be mindful of the pitfalls you may encounter along the way, from deviating from the FCRA to acting in a discriminatory manner under the EEOC's definition. Be mindful about how you make employment decisions and look to revisit and revise your policy on a regular basis to adapt to a changing regulatory environment. 

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Michael Klazema

About Michael Klazema The author

Michael Klazema is the lead author and editor for Dallas-based with a focus on human resource and employment screening developments

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