Are you at risk when it comes to background checks? David Fortney, an attorney with Fortney & Scott, LLC, a Washington D.C. employment law firm, and a speaker at the National Employment Law Institute’s Employment Law Workshop in Washington, has some concerns about the way background checks are being utilized by some employers in the hiring process.

How does your company use criminal background screens in the selection process? Are you disqualifying potential new hires based solely on a candidate’s background information? If so, you need to be aware of the following:

Convictions, opposed to arrests, should be the only information considered. “Adverse-employment decisions based on the candidate’s arrest record are generally improper and may lead to liability for discrimination under Title VII and state anti-discrimination laws on either a disparate treatment or adverse impact theory,” Forney said.

Fortney recommends:

• Base adverse-employment decisions only on recent, job-related convictions.
• Conduct an individualized assessment of each candidate and his or her conviction records as to disqualification for employment. Policies without bright-line conviction rules are less likely to result in disparate-impact challenges than bright-line rules, but may still lead to disparate-treatment claims.

Further, The National Center for Public Policy Research issued a Press Release dated August 16, 2010, stating, “EEOC warns employers: If you don’t want to hire felons, you need a good reason.” Per the EEOC, it is illegal to use a prospective employee’s past conviction records, even for serious felonies, as an “absolute measure” as to whether they should be hired because this “could limit the employment opportunities of some protected groups.”

According to the EEOC, prior conviction may be considered if job-related, given the following factors:

• The nature and gravity of the offense
• How old the conviction is
• How the job relates to the crime committed

Therefore, make sure you have business justification as to why you are making adverse hiring decisions based on criminal background records. And make sure you are not considering arrest records.

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