Criminal Records Check - checking a
criminal history record
A criminal records check should be
performed on any new hire because last year over 6 million people in
the U.S. were in jail, prison, on parole or on probation and a large
portion of the crimes committed are by repeat offenders. Performing a
criminal records check should be seriously considered when you have
doubt about someone's past. Keep in mind you or your company could be
held liable if someone you employ commits a crime on the job and it
is found they had a criminal record which you failed to research.
Checking criminal records is a sensitive
issue but in order to protect your business from liability it is best to
conduct a criminal record check on applicants who will:
- be bonded because of access to money
or valuables
- carry a weapon
- drive a company vehicle
- have access to drugs or explosives
- have access to master keys
- have a great deal of contact with the
public, patients, or children
- be filling a position that requires a
criminal record check under state law
Restrictions on Criminal Record Checks
There are two types of law that regulate
the use of criminal record checks.
Federal Civil Rights Law. Asking
applicants to disclose their criminal records may violate their civil
rights. Before asking about them, ask yourself:
- Is there an adverse impact on minority
applicants?
- If there is an adverse impact, is the
record check related to the performance of the job or some other
business necessity?
- If there is a business necessity, is
there another way to investigate the applicant's background to get
around the adverse impact?
State law. Some states restrict
checks of criminal records to those employers who are checking for
specified reasons. Some states even prosecute employers that violate
laws preventing criminal record disclosure. On the other hand, most
states prohibit people convicted of certain crimes from holding certain
occupations, such as home health worker, daycare worker, teacher, etc.
Checking Conviction Records
We recommend that you check conviction
records only if you need to do so to protect your business from
negligent hiring claims. Whether you are justified in requesting a
criminal record check can be determined from:
- the type of position being filled
- the information that you had obtained
from the applicant, former employers, personal references, and
educational references before you started a criminal record search
- the ability of your business to bear
the cost of the search
Where do you check? The easiest
way to check conviction records is to have a private detective agency do
it for you. You can also do it by communicating directly with:
- the state's central repository of
records
- state and local criminal agencies
- any county in which the applicant may
have been living
- the state's department of motor
vehicles for records of driving-related convictions and violations
- the Federal Bureau of Investigation
Legal considerations. Because
conviction records can cover an array of behavior and can sometimes
unfairly affect certain groups of people, be sure to:
- comply with anti-discrimination laws,
both federal (if you have 15 or more employees) and state
- avoid violating state laws that
restrict use and disclosure of criminal records or that require you to
check conviction records based on the nature of your industry or the
type of position you are filling
Checking Arrest Records
Routine checking of arrest records isn't
permitted. An arrest record alone is not proof that an applicant
committed a crime.
In the event that you are permitted to
check arrest records, in order to deny employment on the basis of an
arrest record, you must:
- consider the relationship of the
arrest charge to the position applied for
- determine the likelihood that the
applicant actually committed the conduct alleged in the arrest
If the arrest is related to the position,
you must still:
- look at surrounding circumstances
- offer the applicant the chance to
explain
- make follow-up inquiries to evaluate
the applicant's credibility
Generally, applicants do not even have to
disclose any information concerning arrest or criminal charges that did
not result in conviction.
A number of states have laws that grant
applicants and employees certain protections against criminal disclosure
based on privacy concerns.