Is Your Criminal Background Check Policy Legal?

The Equal Employment Opportunity Commission (EEOC) has determined that use of arrest and conviction records to deny employment may be illegal when such records are not relevant for a particular position. Denying employment based on irrelevant arrest and conviction records may unjustly limit the employment opportunities of individuals based on their race or ethnicity.

When using criminal background checks in employment decisions, the EEOC recommends that employers take into account the “nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.”

Employers should not stop using criminal background checks as a way to weed out unqualified candidates. Instead, employers should refrain from using background checks as the sole factor in hiring decisions.  Employers should consider reviewing applicants on a case-by-case basis and take into account the relevancy of the information found to the desired position.  If questions remain, employers can provide the applicant with an opportunity explain the information discovered.

© 2012 Parsonage Vandenack Williams LLC

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