Criminal Record Screening: 3 Essential Steps to Reduce Employer Risk

Criminal record screening remains one of the most closely watched parts of the hiring process, by regulators and plaintiffs’ attorneys alike.

We came across the article, “The Dust Hasn’t Settled Yet: Employers Must Continue to be Thoughtful About Criminal Record Screening Policies,” by lawyers Rod M. Fliegel and Garrick Y. Chan of Littler.

In the article, Fliegel and Chan discuss ongoing debate, litigation, and reform on the right of employers to conduct criminal record screenings of potential hires.

They begin by summarizing EEOC Chair Charlotte A. Burrows’ remarks at a recent conference on new criminal recidivism research.

What the EEOC Chair Said About Criminal Record Screening

Chair Burrows discussed the issue of criminal background checks by employers in the context of racial justice and systemic discrimination.

According to the article, “Chair Burrows made the point that criminal background checks impact the employment opportunities of those individuals with criminal records and those in, but soon to be released from, prison (i.e., who will be seeking employment in the near term).”

Burrows emphasized that while the EEOC does not prohibit criminal background checks, they must be “evidence-based.”

What “Evidence-Based” Criminal Record Screening Means

Fliegel and Chan explain that Burrows’ comment about background checks being “evidence-based” likely refers to the standard, drawn from the Third Circuit’s 2007 decision in El v. SEPTA, that criminal record screening policies “‘accurately’ distinguish between applicants that do and do not pose an unacceptable level of risk.”

In other words, policies must account for the fact that not all individuals with a criminal background pose a significant level of risk to employers.

Why Criminal Record Screening Carries a Heightened Claims Risk

Although the EEOC has not been heavily involved in criminal background check cases lately, Fliegel and Chan warn employers of a “heightened claims risk.”

They note that “Plaintiffs’ attorneys have had some high-profile success negotiating both cash payouts and programmatic relief (i.e., mandatory structural changes to the employer’s criminal record screening policy).”

Additionally, “ban the box” laws, which prohibit employers from asking about criminal history on initial job applications, have been passed in more than 30 states for public-sector jobs and in over a dozen states for private employers, along with many cities and counties.

3 Steps to Reduce Criminal Record Screening Risk

In order to reduce the risk of litigation, Fliegel and Chan recommend that employers designate an in-house expert who understands both the business’s needs and legal compliance, and review their background check policies, forms, and notices through a privileged review (that is, one conducted with legal counsel).

They also encourage employers to “assess the adequacy of training, and as needed, arrange for updated training sessions.”

In a society with ongoing criminal justice reform at multiple levels, it is imperative that employers remain informed and adapt their criminal record screening policies accordingly.

Fair Hiring Is Part of a Strong Ethics Program

Fair, consistent criminal record screening is one part of building an authentic workplace culture. Another is giving employees a safe way to speak up when they see discrimination or other misconduct.

Want to learn how an anonymous hotline from Red Flag Reporting can support your compliance program? Contact us today for a quote or a demonstration.

Frequently Asked Questions About Criminal Record Screening

What is criminal record screening?

Criminal record screening is the process of reviewing a job applicant’s criminal history, usually through a background check, to decide whether that history is relevant to the position. When an employer uses an outside background screening company, the federal Fair Credit Reporting Act (FCRA) requires the employer to disclose the check in writing and get the applicant’s written permission first.

Does the EEOC prohibit employers from conducting criminal background checks?

No. Under the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records, employers may use criminal records, but a screening policy that disproportionately excludes applicants of a particular race or national origin must be job related and consistent with business necessity. The EEOC recommends considering the nature and gravity of the offense, the time that has passed, and the nature of the job, along with an individualized assessment of the applicant.

What does “evidence-based” criminal record screening mean?

It generally means the policy is backed by evidence showing that it accurately separates applicants who pose an unacceptable level of risk from those who do not. Blanket exclusions of anyone with a criminal record are difficult to defend under this standard.

What are “ban the box” laws?

Ban-the-box laws remove the criminal history question from initial job applications and delay criminal record inquiries until later in the hiring process, often until after an interview or a conditional job offer. By mid-2021, more than 30 states and well over 100 cities and counties had such laws, and over a dozen states applied them to private employers. Requirements vary, so employers should check the rules in every location where they hire.

How can employers reduce the legal risk of criminal record screening?

Designate someone who understands both the business and compliance to oversee screening, have counsel review background check policies, forms, and notices, and make sure the people who make hiring decisions are trained and apply the policy consistently. Employers should also track new federal, state, and local laws, which continue to change.