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May 01, 2012

Criminal Background Checks

By: Paul Ebeltoft

Are you hearing more and more about Dickinson becoming a dangerous community in which to live? I am. I state at the outset that I do not believe this to be true for a number of reasons the explication of which is not the subject of this column. If the stated fear is believed, one would expect employers to use criminal background checks as a standard hiring practice. National companies that have moved into town in the past five years and large regional companies certainly are doing so. Yet, I do not find criminal background check policies are common among many employers who have been here awhile. Are we “locals” less concerned about a possible new criminal element in our town than the coffee-cup conversation would have us believe? Probably not. It is more likely that many employers, never having faced the concern, do not know what to do.

What employers need to know

On April 25, 2012 the Equal Employment Opportunity Commission (EEOC) provided “Enforcement Guidance” to employers regarding the use of arrest or conviction records in employment decisions. You can read the entire document at For HR professionals it is fascinating reading. This article covers only a fraction of what it contains and what you should know.

Setting the stage, the EEOC confirmed what many people in our area are starting to feel; that “there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population.” So, should your company start checking criminal backgrounds?

What does a compliant policy look like?

First, while employers may legally consider criminal records in hiring decisions, excluding all applicants with a conviction could violate the law. This is nothing new to Human Resource professionals. A blanket exclusion of anyone with a criminal conviction likely has a disparate impact on racial and ethnic minorities, thus violating Title VII of the Civil Rights Act of 1964. However, it is not just African American and Hispanics being protected. The EEOC tells us that if current incarceration rates remain unchanged, about 1 in 17 Caucasian males are expected to serve time in prison during their lifetime. A blanket, unthinking exclusion of 5% of your potential white male applicant pool [along with 33 percent of your African American male pool and about 17% of all Hispanic men] is not only wrong it is crippling business practice in labor-short areas such as ours.

Instead of blanket prohibitions, the EEOC tells employers to assess job applicants individually in a way that examines (1) the nature and gravity of the criminal offense, (2) the time that has passed since the offense and/or completion of the sentence, and (3) the nature of the job being sought.

Second, apply the policy equally. Again, this is nothing new to Human Resource professionals. It is hard to tell an employer this, however, if they wish to apply a criminal record to exclude a qualified Hispanic, but let the same record “slide” when hiring a Caucasian. The EEOC Guidance gives you the ammunition you need to convince your bosses to do the right thing.

Third, the EEOC recognizes that state laws and regulations prohibit the employment of individuals with records of certain criminal conduct in certain jobs. However, the EEOC ominously reminds employers that such laws are superseded by federal law if the state law or regulation requires or permits a practice contrary to Title VII. While I have not made an exhaustive search, it seems that the most common North Dakota state laws that touch upon an applicant’s criminal background comply with Title VII. This does not excuse employers from making sure that they carefully apply the state law only to those correctly classified positions to which a state prohibition validly extends.

A drafting checklist

For policy preparation, the EEOC gives the following checklist:

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

• Identify essential job requirements and the actual circumstances under which the jobs are performed.

• Determine the specific offenses that may demonstrate unfitness for performing such jobs.

• Identify the criminal offenses based on all available evidence.

• Determine the duration of exclusions for criminal conduct based on all available evidence.

• Include an individualized assessment.

• Record the justification for the policy and procedures.

• Note and keep a record of consultations and research considered in crafting the policy and procedures.

As important, the EEOC stresses that employers must train managers in how to implement a policy so that its application remains consist with Title VII.

Reprinted with permission from an article submitted for publication in the May, 2012 Southwest Area Human Resource Association newsletter.