- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
Considering Criminal History in Pre-Employment DecisionsBy: Allison Mann
Many companies in North Dakota are hiring right now. Comprehensive background checks are often performed as part of the hiring process, and the criminal history of an applicant is a potentially relevant factor. For example, a company that specializes in the protection of confidential personal information likely does not want to hire someone that has recently been convicted of identity theft.
However, employers must be careful when using past criminal behavior as a justification for not hiring an applicant. The Equal Employment Opportunity Commission (EEOC) has made it clear that it considers certain employment decisions based on past criminal behavior discriminatory.
Enforcement Standards:Title VII of the Civil Rights Act, prohibits discrimination on the basis of race, color, religion, sex, or national origin. Discrimination on the basis of criminal history is not directly actionable under Title VII. However, employment screening based on past criminal behavior becomes actionable when it is used in a way that causes discrimination based on a protected factor. There are two theories generally used by the EEOC to show actionable discrimination in these circumstances: (1) disparate treatment; and (2) disparate impact.
Additional evidence that may be used to add credence to one of the above theories includes biased statements of individuals involved in the hiring process, inconsistencies in the hiring process, and other statistical evidence.
In Practice:When hiring, an employer must make all decisions based on the qualifications of the applicants and the applicant’s suitability for the position. Rarely should employers categorically refuse to hire applicants with a criminal history. Instead, employers should engage in an analytical process that analyzes the needs of the position, and balances it with potential risks of hiring an individual with a specific criminal background. A hiring manager should consider each of the following when reviewing an applicant’s criminal history:
These are just a few general guidelines for compliance with federal law. An employer should consult with competent legal counsel in the event that a specific issue arises.
Our Interest in Serving You:My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at email@example.com. We promise to take your comments and ideas to heart.
(Otherwise known as “the fine print”)
Reprinted with permission from an article submitted for publication in the March, 2017 Southwest Area Human Resource Association newsletter.