Are Your Criminal Background Checks Legal?
January 26th, 2012Hiring decisions are critical to your company’s success. Logically, you should do everything in your power to make sure your candidates are upstanding, law-abiding citizens with spotless criminal records, right?
Maybe, maybe not.
While it may be reasonable for you to not want to hire an axe murderer, you need to be careful about your company’s criminal background policies. They could cost you dearly. In fact, Pepsi Beverages recently agreed to pay $3.13 million to settle a lawsuit brought by the Equal Employment Opportunity Commission over alleged discriminatory background screening practices.
The case centered around Pepsi’s policy to not hire applicants on a permanent basis whose background checks revealed an arrest that did not lead to conviction for positions at their factory. The EEOC said that 300 black applicants were denied permanent employment due to arrests that did not lead to convictions.
The policy was deemed discriminatory because there was “reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.”
Some experts predict that these types of enforcement actions will only increase with time. So what’s a responsible employer to do?
In some cases, criminal background checks are a necessary part of business. Too often, candidates give incomplete – or downright false – information, because they know that certain facts about past actions may disqualify them from consideration. If you do choose to conduct a background check to get more information about an applicant, use these common-sense tips:
- Get the applicant’s consent in writing – before you check anything. Explain clearly what you plan to check and how you will gather information. This gives candidates the opportunity to remove themselves from consideration before embarrassing details are discovered, and it prevents applicants from later claiming that their privacy has been violated.
- Make sure your inquiries are relevant to the job in question. If you are hiring a security guard who will carry a weapon, it’s reasonable to want to check for past criminal convictions. If you’re hiring an administrative assistant, however, a criminal background check may be unwarranted. As a reminder, Pennsylvania only allows employers to consider felony and misdemeanor convictions to the extent that they relate to the applicant’s suitability for a specific position.
- Apply your policies consistently. Conduct the same checks for every candidate who makes the “final cut” and is being considered for a certain job.
- When in doubt, consult with your attorney. It’s smartest and safest to work with an attorney when reviewing and/or changing your criminal background check policy.
Minimize Your Employment Risks with Berks & Beyond.
As our temporary and contract employees’ employer of record, we assume all employment-related risks. When we send you temporary employees, rest assured they are thoroughly screened and authorized to work for your organization.
To make staffing safer and simpler for you, Berks & Beyond chooses to participate in E-Verify. Since 2007, every employee we’ve placed has been screened with this system. Want to learn more? Contact Berks & Beyond today.
