An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.

In May 2012, the United States’ administrative agency, the Equal Employment Opportunity Commission (EEOC), issued new guidance explaining how employers may violate Title VII of the Civil Rights Act of 1964 by screening out and rejecting job applicants that have a criminal history. The guidance set forth statistical evidence in support of a heightened scrutiny of criminal background checks. Specifically, according to the EEOC, nearly one in four job applicants has some kind of criminal past; therefore, an employer’s inflexible position on criminal backgrounds denies employment to a significant portion of the population and deprives these individuals of the opportunity to be productive members of society. The EEOC also presented evidence that some criminal background screens may have a disparate impact on certain segments of the population, such as black and Latino men. Therefore, the EEOC issued guidelines recommending that employers not ask about convictions on job applications and that, if and when they do make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity. These guidelines also strongly recommend that employers conduct individualized assessments, using the nature of the crime, the time elapsed, and the nature of the job, in order to screen out only those applicants whose criminal conduct bears a demonstrably tight connection to the position in question. The Agency made clear that it will pursue litigation against employers that have a rigid no felony conviction rule and/or fail to conduct an individualized assessment when screening job applicants with a criminal history.

Based on similar logic, nine states (Colorado, California, Connecticut, Illinois, Massachusetts, New Mexico, Minnesota, and Hawaii) have enacted so-called “ban the box” laws that limit an employer's ability to conduct background checks regarding an applicant’s criminal history. Cities that have also banned the box include: Atlantic City, NJ; Atlanta, GA; Austin, TX; Baltimore, MD; Boston, MA; Chicago, IL; Cincinnati, OH; Cleveland, OH; Detroit, MI; Memphis, TN; Minneapolis, MN; New York, NY; Newark, NJ; Oakland, CA; Philadelphia, PA; Pittsburgh, PA; San Francisco, CA; Seattle, WA; St. Paul, MN; and Washington, DC. These laws, which sometimes apply only to government employers and sometimes to all employers, vary with regard to when and what kind of criminal background information may be gathered or considered in the hiring process. For example, Minnesota, Hawaii, and Massachusetts have broad “ban the box” statutes, prohibiting both public and private employers from inquiring into an applicant's criminal history until the interview process (Minnesota and Massachusetts) or until a conditional offer of employment is made (Hawaii). By comparison, in California, employers cannot ask about arrests that did not result in a conviction. And, while California employers may inquire about some convictions, they may not inquire about marijuana-related convictions that are more than two years old. Several states, including New Jersey and Rhode Island, recently introduced “ban the box” legislation. Accordingly, employers can expect more activity on this front in the future.

Given this trend, employers should review their current criminal background check policies and consider the following guidelines:

• Refrain from inquiring into an applicant’s arrest record and/or criminal history on an initial application;

• Develop a tailored written policy for screening criminal records for job applicants and train all managers and hiring officials on the same;

• Comply with the requirements of the federal Fair Credit Reporting Act (FCRA) and similar state laws;

• Keep information confidential about applicants’ (and employees’) criminal records;

• Carefully determine which positions truly require a background check;

• Determine what specific offenses may make a candidate unsuitable for a particular position;

• Consider only convictions related to the position in question or recent in time to the hiring process; and

• Provide applicants with notice of potentially disqualifying convictions and allow them the opportunity to provide information about the offense, including evidence of rehabilitation.

Notwithstanding the above guidelines, employers still must perform their due diligence and remain cognizant of their obligations to ensure a safe workplace for all employees. However, to avoid running afoul of the EEOC guidelines and rapidly developing state and local laws, employers should not use criminal histories as a per se bar to employment.