Many small business owners run criminal background checks on their new hires as a condition of hire. If you don’t already do this, you will be prepared to set this practice up after you read this article. If you are running these now, you’ll learn about some best practices and things to avoid in your current process.
Background Checks provide a critical opportunity to identify trouble ahead prior to it becoming an employment issue. Like, when you find that your new candidate has three separate convictions in the last two years for violent crimes or when that new hire that you thought was the answer to your prayers actually is on probation for his third DUI and lied to you about having a valid driver’s license.
I’m a big advocate for running criminal background checks, BUT, it is very important to do these right. Sloppy processes can hurt you through violations of the FCRA (the Fair Credit Reporting Act provides protections against how you obtain this information and requires notices to the candidate before and after adverse action is taken) and Title VII of the Civil Rights Act (provides protections against discrimination in employment).
Here are some Dos and Don’ts when it comes to running these and using the information you gain:
DO find a credible vendor to run these for you. It is tempting to do “free” searches and look at social media for this step, but those practices are fraught with legal pitfalls – stick with the pros for this one! We have a trusted vendor, just ask for an introduction and we will get you connected.
DON’T run a background check without notifying the candidate and obtaining their written authorization and consent. Again, vendors will provide this for you.
DO carefully consider the whole picture before rejecting a candidate based on their criminal history. Some of the best employees messed up big in their life at some point – second chances can change a life – theirs and yours.
DON’T forget to notify the candidate if you are going to take adverse action (not hire them) – your vendor can provide this notice for you and it is often integrated into the online system.
DO send a pre-adverse action notice and provide the candidate an opportunity to explain any negative areas of their report before you decide not to hire them (and send a post-adverse action notice!). Don’t skip this step, it’s critical under the FCRA!
DON’T ask “Have you been convicted of a crime” on your employment application. Lots of states have already made this pre-employment question illegal and even if yours isn’t one of them, it could be soon.
DO check your state laws to determine at what point you can run background checks – some states require that you wait until the offer has been made, so that’s best practice.
DON’T use any “blanket” policy when it comes to employment decisions (like, we don’t hire anyone with any criminal conviction at all) – consider each candidate on a case-by-case basis and, if you’re not going to hire someone based on their criminal record, be prepared to justify why their conviction could (reasonably) potentially harm your company.
DO ask for a second opinion if you’re on the fence about a conviction. Amplified HR can help you determine if the conviction is truly relevant to the position and could be grounds for adverse action. For example, if they were convicted of a DUI six years ago and will not be driving for you on company business, that is probably not a justifiable reason not to hire them.
DON’T run credit checks. This practice has been heavily litigated and most positions won’t rise to the level of “business necessity” and could expose your company to disparate impact claims.
Running background checks on your candidates is pretty affordable and not only will help you make strong hiring decisions, they also protect you from negligent hiring claims (scroll down to “What is negligent hiring…” at that site to learn more). There’s a lot to consider when it comes to obtaining and using the information in criminal background checks, but the extra steps are worth it in today’s world where anyone can sue you for anything!
Feeling overwhelmed? Want some help setting up a compliant process for this in your store(s)? We can help. 217.636.3565
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