Whether an employer is permitted to check a job applicant's criminal record depends on various factors. Federal and state laws protect applicants from inquiries into criminal records, including convictions, and usually prohibit arrest record checks altogether. Also, while checks may be permitted, the results may not necessarily be a bar to employment. Employers are required to conduct criminal record checks on applicants in certain professions. Employers who don't do proper checking could face negligent hiring legal claims.
Background checks of some kind are a necessary part of almost every hiring. And while some background checks involve more restrictions than others, checking criminal records is by far the realm most fraught with peril. Adding to the complications is the differentiation between checking criminal conviction and arrest records, as well as an employer's liability for negligent hiring if a criminal background check should have been done and was not, resulting in harm caused by the employee.
So where is an employer to begin? First thing's first. You will need to protect your business from liability by doing criminal background checks on applicants who will:
- be bonded because of access to money or valuables
- carry a weapon
- drive a vehicle
- have access to drugs or explosives
- have access to master keys
- have a great deal of contact with the public, patients, or children
- be filling a position that requires a criminal record check under state law
If your employment position falls into any of the above categories it is almost certain that you should do a criminal background check or likely are required by law to do one.
What if the position you are hiring for does not fall into one of the above categories but you want to do as thorough a background check as possible on all prospective hires? The following are the general issues that arise when doing criminal background checks:
- There are legal restrictions on criminal background checks under federal law and under many state laws as well.
- Checking conviction records is generally permitted.
- Checking arrest records is generally not permitted, except for special circumstances.
Restrictions on criminal record checks
There are two types of law that regulate the use of criminal record checks: federal civil rights law and state law.
If you are subject to anti-discrimination laws, asking applicants to disclose their criminal records may violate their civil rights under federal law.
Tip: If you are subject to federal anti-discrimination laws, before asking about criminal records, you may want to consult with an attorney regarding the following questions:
Is there an adverse impact on minority applicants?
If there is an adverse impact, is the record check related to the performance of the job or some other business necessity?
If there is a business necessity, is there another way to investigate the applicant's background to get around the adverse impact?
Under state law, an employer's check of criminal records is sometimes restricted to those employers who are checking for specified reasons. Some states even prosecute employers that violate laws preventing criminal record disclosure.
On the other hand, most states prohibit people convicted of certain crimes from holding certain occupations, such as home health worker, daycare worker, teacher, etc.
Consult our state map for state specific information on checking job applicants' and employees' criminal records.
Checking criminal conviction records
We recommend that you check conviction records only if you need to do so to protect your business from negligent hiring claims. Whether you are justified in requesting a criminal record check can be determined from:
- the type of position being filled
- the information that you had obtained from the applicant, former employers, personal references, and educational references before you started a criminal record search
- the ability of your business to bear the cost of the search
Where do you check? The easiest way to check conviction records is to have a private detective agency do it for you. You can also do it by communicating directly with:
- the state's central repository of records
- state and local criminal agencies
- any county in which the applicant may have been living
- the state's department of motor vehicles for records of driving-related convictions and violations
- the Federal Bureau of Investigation
Warning: Because conviction records can cover an array of behavior and can sometimes unfairly affect certain groups of people, be sure to:
Comply with anti-discrimination laws, on both the federal (generally applicable if you have 15 or more employees) and state level.
Avoid violating state laws that restrict use and disclosure of criminal records or that require you to check conviction records based on the nature of your industry or the type of position you are filling.
Rules for employer checks of arrest records
Employers are only permitted access to arrest records under limited circumstances. Routine checking of arrest records isn't permitted because an arrest record alone is not proof that an applicant committed a crime. Generally, applicants do not even have to disclose any information concerning arrest or criminal charges that did not result in conviction.
In the event that you are permitted to check arrest records, in order to deny employment on the basis of an arrest record, you must:
- consider the relationship of the arrest charge to the position applied for
- determine the likelihood that the applicant actually committed the conduct alleged in the arrest
Even if the arrest is related to the position, you must still:
- look at surrounding circumstances
- offer the applicant the chance to explain
- make follow-up inquiries to evaluate the applicant's credibility
Tip: A number of states have laws that grant applicants and employees certain protections against criminal disclosure based on privacy concerns.