Criminal background checks are used for preemployment screening in many organizations. If you own a company that sends service workers to people’s homes or businesses, you don’t want to send someone that may expose customers to potential risks. But the commonplace practice of background checks has come under scrutiny in recent years. Some of the criticisms do have merit because some segments of the population are convicted of crimes at a higher rate than other segments.
Critics suggest that requiring a criminal background check and screening out candidates for infractions that are not job related may be a type of discrimination. Employers should evaluate each job on its own merits. Certainly rejecting a candidate for a bookkeeper position who has a felony fraud conviction is hard to debate. However, bouncing a candidate for a scaffolding erector position for a non-violent misdemeanor five years ago might be considered overzealous.
The key for employers is to avoid having a blanket policy regarding what constitutes a passing or failing criminal background screen. Instead, they should set criteria for each job title or job grouping separately. For example, the company may set higher standards for candidates who will be driving company vehicles than those who will always be passengers or those working on the plant floor. The company might have a different set of standards for employees who will have access to cash or the company’s books than for administrative roles that don’t have access.
Another option is to conduct the background screen post-offer. There are several advantages for conducting the screens after an offer has been made versus conducting the screen in advance of the offer. Of course, the job offer is contingent upon the candidate meeting the screening standards. Post-offer screening benefits are listed below.
1. It’s less expensive. There is no need to pay for a screen if you haven’t come to financial terms with the candidate. Furthermore, the Fair Credit Reporting Act requires that employers send a specific kind of notice to candidates who are rejected on the basis of a criminal background or credit check. You may have to send multiple notices out if you screen several candidates.
2. It provides a much stronger defense against discrimination. If you have a signed offer letter from a minority candidate conditional upon meeting the company’s standards, and those standards are reasonable, it’s hard for the Equal Employment Opportunity Commission to conclude that your organization utilizes discriminatory hiring practices. If you conduct the screen pre-offer, you can’t prove that you would have hired the minority even if the screen results were acceptable.
3. Some states don’t allow pre-offer criminal background screens. These screens are legal in North Carolina, South Carolina and Virginia. If your organization operates in multiple states, make sure you know the law in each state.
We recommend that you include a statement on the application stating that the company conducts post-offer criminal background screens and that criteria varies by position. Contact the Davidson Group for more guidance on candidate screening.
