How to Handle Criminal Records in the Workplace

May 31, 2022

LEGAL SCENARIO: You want to hire an employee, but the background check reveals a criminal record. Don’t be so quick to toss the application. Job applicants can sue employers for discrimination when they are not hired because of a negative background check. So how should you proceed?

Employers are allow to make hiring decisions based on arrests or conviction records. However, employers must follow these two rules:

  1. treat all applicants with the same type of criminal record the same (despite their race or other protected class) and 
  2. Make sure the criminal record does not exclude a certain race or national origin. The employer must show that the exclusions are “job related and consistent with business necessity” under Title VII to avoid liability.

When making a hiring decision based on a negative background check, consider the following: 1) nature of the offense; (2) time that has passed; (2) nature of the job. The hiring decision might be different for a candidate with a battery charge from 10 years ago for a solo position compared to a recent battery charge for a position working with the elderly. Industries involving child care, banks and airports are also dealt with differently. 

Also be aware of whether you are in a “ban the box” state. If so, this may prohibit employers from asking criminal history questions on employment applications.

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 For informational purposes only. This information does not constitute an attorney client relationship and is not legal advise. Consult with an employment lawyer in your jurisdiction before making any important business decisions.

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