Guest Columns

Screening workers for criminal convictions

Stephanie Roth
Stephanie Roth

Employers are facing increased pressure to forgo inquiring about applicants' criminal convictions during the initial-evaluation stage of the hiring process. Nonprofit organizations, such as the National Employment Law Project, and government agencies, such as the Equal Employment Opportunity Commission, have raised concerns that such inquiries are used to improperly exclude otherwise viable employment candidates from the job pool and that these exclusions disproportionately affect individuals protected from discrimination under state and federal employment laws. 

Advocates have proposed removing the requirement that applicants disclose their criminal conviction records on initial applications for employment (“banning the box”) in the hope that otherwise-qualified individuals with criminal histories will be considered for employment.  Advocates assert the criminal history of many applicants does not impair their ability to perform jobs that currently require applicants to disclose that history on initial applications, but that such early disclosure hinders the applicants' ability to obtain gainful employment.  

For many employers, particularly those in industries that work with vulnerable populations such as the elderly, the young or the infirm, banning the box represents a paradigm shift. Facing relatively high turnover rates for low-skilled positions, employers in many healthcare industries seek both to sort through large numbers of applications and to ensure the safety of those persons entrusted to their care. Given the changing legal landscape and the attention of the EEOC, employers would be wise to avoid sticking their heads in the sand and confront the new reality – and requirements – head on. 

Stay abreast of state and local law

Ban the box laws have moved swiftly through the states. In February 2015, Georgia became the 14th state to ban the box in some form. More than 90 cities also have enacted measures limiting the use of criminal background inquiries during the initial stages of the application process. While several states limit the scope of the restriction to public employers, six states – Hawaii, Illinois, Massachusetts, Minnesota, Rhode Island and New Jersey - restrict the ability of many private employers to ask about criminal convictions. The contours of the limitations vary by state or municipality; the timing or content of an inquiry may be legal in one location and banned in another. 

Don't assume “nature of work” provides an exemption

Many healthcare providers turn a deaf ear to discussions of criminal background checks based on the mistaken assumption they have a free pass from compliance with these laws. But as a recent case from Hawaii demonstrates, short of a legal mandate to conduct criminal background checks or other specified exclusion from these laws, employers will have to make the case that a decision to deny employment based on an applicant's criminal history is job-related and consistent with business necessity. 

In the Hawaii case, a medical center denied employment as a radiological technician to a potentially-qualified applicant who had been convicted and served time in prison for possession of crystal methamphetamine with intent to distribute. The Supreme Court of Hawaii remanded the case for further proceedings to determine whether there was a sufficient factual basis for the medical center's assertion that the position's proximity to its vulnerable patient population and pain medications was a rational basis for denying employment. The medical center could not simply assert its role as a care provider necessitated it reject the applicant; it would have to establish a connection between the applicant's felony conviction and the risk he might pose to vulnerable patients in light of that conviction. 

Conduct individualized inquiries

Nonprofit organizations and the EEOC are pressing employers to shift from automatic disqualification of applicants with felony convictions to an individualized assessment of otherwise-qualified candidates. Employers are to consider the relationship between an applicant's criminal history and the job sought. What was the nature of the conviction and what were the underlying circumstances? How much time has passed since the conviction? The individualized assessment is designed for applicants not only to provide contextual information regarding their convictions but also to permit them to challenge information that has been linked inaccurately to their background search. 

Keep records – and keep them confidential

After taking the time to conduct individualized assessments of candidates who are “red-flagged” during criminal background checks, be certain to retain information detailing the decision-making process. If an investigator arrives six months after a hiring decision is made, the best hiring process could be undermined by spotty memories or a lack of evidence. And, as with all employment records, maintain these records in secure, private files. Some states, such as Massachusetts, have specific requirements for storing criminal records information.

Revise applications and train managers

If you have not already done so, revise applications to remove “the box” unless its inclusion is required by state or federal law. Train those involved in the hiring process regarding when and how they may inquire into an applicant's criminal conviction history. Remember, you are not forgoing your right to reject an unsuitable candidate; you are simply delaying the point at which you learn information that ultimately may disqualify an applicant from consideration for a particular position.

Stephanie Roth is an associate in the Labor & Employment practice at Bass, Berry & Sims in Nashville.

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