Conducting Background Checks: Second Chance Initiatives and Background Checks Series, Part 3

March 20, 2020
By Mary Ann Saenz-Thompson, SPHR, SHRM-SCP, TAC Human Resources Generalist
Risk Management News

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This is part three of a four-part series on second chance initiatives and background checks. The previous article gave a brief overview of recent litigation and initiatives and the Society of Human Resource Management's initiative whose goals include preventing crime, facilitating successful re-entry to the workforce and reducing recidivism.

Background checks

Employers conduct background checks and criminal history background checks on applicants for several reasons, including protecting other employees, the public and the employer's assets and reputation. A background check is conducted to verify that the applicant has told the truth in the application and interviewing process.

Obtaining information to verify education, past employment, or personal and/or professional references is not subject to the Fair Credit Reporting Act if the employer obtains this information directly from schools and/or employers.

When employers conduct a background check (including credit, criminal and past employer checks) using a third-party, the background checks are considered to be "consumer reports." These are covered by The Fair Credit Reporting Act of 1970 (FCRA) and implementing regulations including disclosures, pre-authorizations, and other notifications for pre-adverse and adverse actions taken. Adverse actions generally include any employment-related decision that negatively affects the applicant or employee. The purpose of providing a pre-adverse action notice is to allow the applicant or employee an opportunity to discuss the background report with the employer prior to becoming subject to any adverse action.

Certain criminal histories may eliminate an applicant from eligibility for certain positions. Being a former criminal offender is not a protected class under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) states in its guidance on Consideration of Arrests and Convictions Records in Employment Decisions Under Title VII of the Civil Rights Act that "there is Title VII disparate impact liability where the evidence shows that a covered employer's criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity".  (Note:  On Aug. 6, 2019, the Fifth Circuit Court of Appeals ruled that this EEOC guidance is not enforceable in Texas and that EEOC exceeded its authority with issuing this guidance.)

Your county attorney or outside counsel should be consulted prior to making changes in any policy or procedure regarding criminal history background checks on prospective employees.)

On Nov. 11, 2019, EEOC issued a press release stating that the 1major retailer Dollar General will pay a $6 million fine, enter into a three-year consent decree, and furnish other relief to settle a class action race discrimination lawsuit. EEOC sued Dollar General because the company's broad background check violated Title VII of the Civil Rights Act of 1964.

According to the lawsuit, Dollar General denied employment to African Americans at a significantly higher rate than white applicants for failing the company's broad criminal background check. According to the EEOC, the company's broad criminal background check disparately impacted African Americans in violation of Title VII.

While there are certain county positions that can never be filled by someone with a criminal record due to licensing or certification requirements, as a general rule, the EEOC recommends the following best employer practices:

  • Eliminate policies or practices that exclude people from employment to certain positions based on their criminal records.
  • Train managers, hiring officials and decision-makers about Title VII and its prohibition on employment discrimination.
  • 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
  • Train managers, hiring officials and decision-makers on how to implement the policy and procedures consistent with Title VII.
  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity.
  • Keep information about applicants' and employees' criminal records confidential.
For further information on these or other topics, please contact your assigned TAC HR consultant.  It is recommended that you additionally consult your county attorney or other legal counsel. Recommendations and information provided are based on current information in the field of Human Resources.  This information is not intended to be, nor should they be construed as, legal advice or legal guidance.