| Many employers wish to screen their applicants for a criminal history before extending them an offer of employment. Sometimes, such as in situations where the employees will be working closely with children, such screenings may be required by law. Other times, employers are concerned about preventing workplace theft or violence. They also wish to protect themselves against negligent hiring claims. Although employers are usually entitled to check an applicant's criminal history, there may be limitations upon the employer's use of that information.
Some states have specific statutes addressing this issue. These statutes often state that employment of persons with past criminal convictions should be encouraged as a matter of public policy. Usually, these statutes require a sufficient nexus between the crime of which the applicant was convicted and the potential job before an employer may refuse to hire an applicant based upon a past criminal conviction.
In Pennsylvania, for example, employers can consider an applicant's past felony and misdemeanor convictions only to the extent to which they relate to the applicant's suitability for employment in the position for which he or she has applied. Furthermore, if the Pennsylvania employer bases its decision not to hire an applicant upon the applicant's criminal history, the employer must notify the applicant, in writing, of that decision.
In other states, there are no statutes addressing how employers may use the criminal histories of potential employees. Employees should be aware, however, that employers sometimes face Title VII race discrimination claims when they refuse to hire anyone with a criminal record. Plaintiffs in some Title VII cases have been successful where they have shown that an employer's policy refusing to hire those with a criminal record has a disparate impact on applicants of a certain race.
Plaintiffs in these cases have set forth statistics showing that certain minorities are more likely to be arrested for or convicted of crimes. Thus, they have argued that the employer's refusal to hire anyone who had a criminal record of any kind (with the exception of minor traffic offenses) constituted disparate impact racial discrimination. Some courts have accepted this argument and have ruled in favor of the plaintiffs. Other courts have refused to apply such reasoning, finding that such arguments are insulting to racial minorities. Those courts have stated that if an applicant wants an opportunity to be hired under a zero-tolerance criminal history policy, he or she must simply refrain from criminal activity. The screening activity, the courts find, does not constitute racial discrimination.
In all cases, if employers can show that they have a legitimate business reason to exclude persons who have committed certain offenses from employment, they will not be subject to Title VII or other liability.
Employers should also be aware that the Fair Credit Reporting Act does not allow consumer reporting agencies to make information about arrests and convictions available to potential employers if the arrest or conviction is more than seven years old, unless the job has a salary of $75,000 or more per year. Furthermore, if an employer chooses not to hire an applicant based upon information found in the credit report, it must give the applicant an opportunity to review the report. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |