Background Checks

In the last few years, the state-by-state laws regarding disclosure of previous criminal convictions in connection with employment have changed dramatically.  We always recommend doing a criminal history check on candidates for employment, but it is also important for prospective employers to check the employment laws in their particular state!

Some states, for example, forbid employers from even asking on their job applications if the candidate has been convicted of anything other than a minor traffic violation.  That doesn’t mean, however, that employers aren’t allowed to do criminal court checks if they inform the candidate before the check is done and obtain his express permission to do the check.

Let’s suppose that you inform a candidate for employment that you’re going to do a criminal court check as part of your pre-employment screening process, obtain his express permission to do the check, and your check discloses that the candidate does have a previous conviction on his record.  Here are several things to think about:

  • How long ago was the conviction and for what?       Should a drunk- driving conviction five years ago preclude someone from ever finding employment?       Probably not.
  • Has there been more than one conviction within the recent past and for what?
  • Were the convictions misdemeanors or felonies?
  • Was any conviction work-related?
  • Were any of the convictions for violent offenses against others?

Frankly, the pendulum of federal and state laws is continuing to swing in the direction of protecting convicted felons from being denied employment. What options do employers have?  In those states which still allow employers to ask a question about previous convictions on their job applications, it’s usually not the previous conviction that causes a job candidate to be dropped from further consideration – it’s the lie on the application.  It’s the lie, not the conviction, which usually eliminates the candidate from further consideration because most job seekers won’t admit they have a previous conviction on a job application for fear of being automatically screened out.  Any sort of lie, however, either direct or by omission, should be sufficient to move on to the next candidate.

Nevertheless, caution should be exercised when denying employment to someone based solely on a court check. Whether or not a candidate can be denied employment because of a conviction will depend, in many instances, on the laws of the state in which the employer is located.

In upcoming blogs there will be more information on court checks.