Returned Reports Containing Criminal Records
If a report on one of my candidates contains a criminal record, can I exclude the candidate because of this criminal conviction?
Not necessarily. The Equal Employment Opportunity Commission (EEOC) issued guidance on hiring employees with criminal records and the use of criminal and arrest records in April 2012. While the guidance is not law, the EEOC recommends employers do not automatically disqualify an individual based solely on criminal history. Instead, the EEOC recommends employers weigh three factors when assessing whether the existence of a criminal record is sufficient for job exclusion: 1) the nature and gravity of the offense or conduct, 2) the time that has passed since the offense or conduct, and/or 3) the nature of the job held or sought. Further, the EEOC recommends an “individualized assessment” be performed before making a final hiring determination. This individualized assessment involves the employer speaking with the candidate, notifying him/her that he/she will not be considered for the position based on the criminal history and allowing the candidate to have the opportunity to explain and provide further information.
If a decision is made to disqualify the individual for his or her criminal history (or any other detail in the background report), you, as the employer, must still follow the two-step adverse action process required by the FCRA.
If you require additional assistance, please speak to your legal counsel.
What if some information in my candidate’s background report concerns me?
Before you decide to reject a job application, reassign or terminate an employee, deny a promotion, or take any other adverse employment action ("adverse action") based on information in a background report, you must give the candidate or employee a Pre-Adverse Action notice that includes:
• A copy of the report you relied on to make your decision.
• A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”
Download Summary of Rights under the FCRA.
The intent of the two stages of adverse action is so the candidate will have an opportunity to dispute inaccurate information and, if the information is in fact inaccurate, the candidate would then still be eligible for the position, promotion, etc.
The statutory language of the FCRA does not speak specifically to “holding the position open” during adverse action. However, it has been noted by the Federal Trade Commission (FTC) that employers allow at least five business days for the candidate to initiate a dispute before making a final employment decision and sending the final adverse action letter.
Reference a sample of a Pre-Adverse Action notice. After a final hiring decision is made, the employer must send a “final” adverse action notice.
Reference a sample of an Adverse Action letter.