Hiring Decisions Based on Background Checks

Part 2 of 2

Continued from Part 1 of 2.  So you’ve taken the important step of running a background check on a candidate that you are considering hiring. Now that you have the results of their background check in your hands, how do proceed with making a legal hiring decision?

Federal and state laws provide protection for applicants from discrimination based on their criminal history. Title VII of the Civil Rights Act prohibits employers from treating people with similar criminal records differently because of their race, national origin, religion, color, or sex. The Michigan Elliott-Larson Civil Rights Act also includes age, height, weight, and familial/marital status. Employers are also prohibited from implementing policies that screen applicants based on criminal history if the policies disadvantage protected individuals and do not help the employer accurately decide if the individual is likely to be a responsible, safe, and reliable employee.

When deciding whether or not to hire an individual with a criminal record, you must be sure that you can prove that your decision was job related and consistent with business necessity. The four following criteria must be considered when hiring an individual with a criminal record:

Nature and gravity of the conviction: The first thing to consider is the nature and gravity of the crime that the individual was convicted of and how it relates to the work that would be performed. If the work to be performed is a receptionist answering phone calls and the applicant was convicted of a drunk driving offense, the crime does not have any bearing on the applicant’s ability to do the work. However, if the applicant was convicted of an identity theft crime and their work would give them direct access to customers’ personal information, then the crime would be directly related to their job. In this scenario, not only would it be irresponsible of an employer to hire the individual, but the employer could be held liable if they hired the applicant and the applicant ended up stealing a customer’s identity.

Honesty of applicant: As discussed in the blog Part I: Should I Be Conducting Background Checks on Applicants?, most employers’ new hire applications should ask applicants if they have ever been convicted of a criminal offense. If the applicant is honest and forthright about their past conviction, they are more likely to regret their actions and less likely to repeat the criminal act. If, however, the applicant lied on their application about their conviction, then it demonstrates that the individual is dishonest and untrustworthy before they’ve even started working for you. Once a job offer is made, the background check is run, and you see the details of the applicant’s convictions, you can ask them to tell you about the conviction and explain their side of the story – such as asking what the background of the crime was and what the individual has done since the offense (i.e. job training, steady employment, etc.).

Date of the conviction: Another factor to consider is the date of the conviction and the amount of time that has elapsed since the conviction or release. If the candidate was young when the crime was committed and they have not had any new convictions, then it is possible that the crime was a youthful indiscretion. Research typically shows that after 7 years of law abiding behavior, an individual has the same risk of committing a crime as someone without a criminal background. On the other hand, if the conviction was recent, an employer could make the argument that the individual is not trustworthy.

Repeat or escalated convictions: If an individual has a long criminal history in which they have multiple or repeated convictions, or if the applicant started with a shoplifting conviction then escalated to fraud or identity theft, an employer has a strong case for believing that the individual is likely to commit these crimes, or more severe crimes, again in the future.

Deciding whether or not to hire an applicant with a criminal history can be very a difficult field to navigate. UAP’s legal team can offer guidance to our clients before they make a hiring decision for anyone with a criminal history. Our legal team will consider each individual situation on a case by case basis and can provide a legally compliant recommendation for your business. Please contact UAP if you need any additional information about our legal or background check services.