In our last article we discussed Ban the Box/Fair Chance to Work laws.
To review, these various laws may dictate when in the process you may ask about criminal activity or request us to search for criminal records. Also, some jurisdictions require you to make a conditional job offer before obtaining a criminal record. Some jurisdictions only prohibit the practice if you have a certain number of employees. Some of the laws only apply to public employees while others include private employees. One source for reviewing some of these laws is https://www.nelp.org/campaign/ensuring-fair-chance-to-work/.
And as we discussed in the last article, even if the jurisdiction that concerns you has no law (yet) the EEOC advises, “As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications.”
So, what are the ramifications of this timing in your hiring process? Many employers over the years have preferred to assemble all their candidates’ qualifications and history and then make a decision, with the thinking that if they decide on one person before all the information is known, they may have to go back through the screening process again on another candidate. They would argue that it makes no sense to spend time and dollars on, say, a driver applicant who has a recent felony DWI—they would like to know about that conviction upfront, so they can save their time and money and focus their resources on a qualified candidate.
If obtaining all the information upfront is prohibited, one ramification is that if you do not hire someone based on criminal record information, it will be clearer that the criminal record information was the reason. You may still decide not to hire the driver if they have a DWI, you may still decide not to hire the accounts payable supervisor if they have a recent embezzlement conviction.
Our advice is that you discuss with your counsel your practices and ensure that in your use of criminal records you evaluate the criminal offense by nature, severity, certainty, and timing; determine if the offense is “job-related and consistent with business necessity” and perform an individualized assessment where appropriate (VICTIG may be able to help you with some of these steps).
Thus, it may be that your applicant with the DWI could be qualified to be your accounts payable supervisor. Your applicant with the embezzlement conviction might be qualified for your driving position. “Nature, severity, certainty, timing and job-relatedness and business necessity” are key criteria in your evaluation. There is probably a job for everybody—but not every job is for everybody.
As you comply with Ban the Box/Fair Chance to Work laws, we would advise you to discuss with your counsel your procedures when you use a criminal record to disqualify an applicant for a particular position.
