Should you hire or not? It is common for Catapult to get inquiries from our members wanting some sort of gut check around their interpretation of a background report. Your decision point is made more complicated by the addition of “second chance/criminal reentry” laws being adopted around the country, and the pressures associated with the tight labor market.
We are happy to help you think through the heartburn that the report may be causing, particularly as it relates to prior criminal activity.
When faced with a report that shows your applicant has a criminal history, you can take these steps to help navigate the situation:
Follow the guidelines of what is known as the Green Factors:
- Look at the severity of the conviction. Having a blanket policy to disqualify an applicant for any conviction other than a minor traffic violation could create a potential Title VII violation. We are often asked if arrests can be considered. The fact of an arrest does not establish that criminal conduct has occurred. Therefore, exclusions based on an arrest are not in and of themselves consistent with a business necessity, unless you can show it is job-related. An employer could decide, based on the conduct underlying the arrest, if the conduct is relevant and would indicate that the applicant is unfit for the position in question. For instance, an applicant with an arrest for a sexual assault would most likely not be a good fit for a daycare worker, or at a minimum would raise red flags. Seek advice from Catapult’s HR Advisors or the attorneys in our Employment Law Advice Plan in these cases.
- The older the conviction, the less weight it should carry in your determination. Remember there is no hard and fast cut-off for the age of the crime under the federal law.
- Take into consideration how the conviction relates to the job held or sought. Remember the EEOC phrase of “job related and consistent with business necessity” reappears across many areas of enforcement.
Allow for an Individualized Assessment (this is a chance for the applicant to explain):
- Look for explanation from the applicant to their convictions and consider the circumstances around their conviction.
- Consider their age when they committed the crime. Has time passed without them repeating their earlier mistakes?
- Look for signs that they have reformed. Have they completed programs to help them change? Have they been able to hold a similar job as the one sought?
Still unclear on what to do?
- Call our Advice team, or our background checking department for advice. We handle hundreds of these cases each year and can help you make the right decision for your organization.
It is very important to remember that you need to remain consistent in how you treat your applicants, and how you apply your decision related to criminal records.
Hiring can be very stressful, and Catapult knows that it is better to get it right the first time. If you have any questions about becoming compliant with the federal and state laws or have general question regarding our background checking services please feel free to contact Kevin von der Lippe at (336) 899-1150 or Kevin.vonderlippe@capital.org. We are happy to help you screen your candidates!
Catapult Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11M.
