Important Elements of a Criminal Background Check Policy

Protecting your company, your employees, and your assets requires making smart hiring decisions. To that end, criminal background checks are quickly becoming the norm. In fact, in a survey done by the National Association of Professional Background Screeners, 84% of all respondents said that some form of criminal background check is part of their routine onboarding process for new hires.

This rise in the use of background screenings has prompted new and stricter regulations regarding the use of criminal records to discriminate in hiring decisions. The Equal Employment Opportunity Commission’s (EEOC) policy essentially states that, unless there is clear evidence that a criminal history will have an adverse impact, barring employment based solely on a conviction record without considering the nature of the offense, the time elapsed since the offense, and the impact on the job itself is unlawful.

How do employers satisfy these conditions and protect their legitimate business issues? What elements are essential to an effective, fair, and legal criminal background check policy?

  1. Plain Language. Your policy should be written in plain English and should document everything.
  2. Master Approach. The goal of defining your master approach is to make your motives obvious.  It should clearly state that your purpose in conducting and using criminal background checks as part of the hiring process is to protect your business, your employees, and your customers.
  3. Identify Legal Requirements. Many positions have federal, state, local, and industry requirements that exclude hiring individuals with a criminal record.
  4. Assess Risks and Mitigations. This process involves identifying risks for each position. Will the employee have unsupervised access to protected populations? Will the employee have access to easily stolen assets? Will the employee be operating vehicles or heavy machinery? Once you’ve identified the risks, you can identify the mitigations. Cameras, managers, and regular supervision are examples of the types of mitigating factors that may be present. The combination of risk and mitigations will help you assess the overall risk profile for each position. Grouping positions with similar risk profiles then gives you a good starting place for the types of background checks required and the potential disqualifiers.
  5. Identify Checks and Disqualifiers. Select checks and disqualifiers that meet the regulatory requirements and reduce the business risks you have identified. Groups with less risk and no regulatory requirements should have less stringent screening criteria than groups with higher risks.
  6. Allow Individual Assessment and Rehabilitation Evidence. The law requires that, prior to taking any action, candidates be informed that negative information was found on a background check which may preclude a job offer. Applicants have time, usually 5 days, to dispute the finding before a final adverse-action notice is sent. The EEOC strongly recommends that candidates be given the chance during this process to submit additional information demonstrating that they do not pose unacceptable risk to your organization. As you make this final assessment, you can consider whether the applicant self-reported the issue, whether they have taken responsibility for their actions, and whether they have undertaken any rehabilitation efforts.

Criminal background checks are an important element of protecting your business and so is an effective background check policy.

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