After extending a job offer to a candidate, we discovered the person had criminal convictions and had served time. When should this information alter our decision?
Quick Answer
Familiarize yourself with applicable state and local law, and examine whether the conviction justifies rescission of the job offer by looking at the nature and seriousness of the offense, the time that has passed since the offense occurred, and the nature of the job.
Legal Perspective
Kollman & Saucier
Timonium, Maryland
The extent to which a criminal conviction may impact employment is a highly specific state and local issue, says author and employment law attorney Darrell VanDeusen of the firm Kollman & Saucier.
Check the law where you are operating. When an employer has made an offer to an individual contingent upon a criminal background check, and then the check establishes there was a conviction, the best practice is to first ask the individual about the circumstances surrounding the conviction (whether time was served is not important; it’s the conviction itself).
Generally speaking, the hiring decision should only be rescinded if there is a connection between the crime and the job for which the individual is being hired: A conviction for bank robbery is a good reason not to hire someone as a bank teller, for example.
Note that some states prohibit individuals from working in some jobs (particularly in childcare or in jobs with other vulnerable populations) where there was a conviction (or even criminal charges) based on a number of bad acts.
Please also be aware that because it is well established there is a significant racial and ethnic disparity of those impacted by our criminal justice system, any “across the board” policy could be challenged as creating a disparate impact on individuals from certain protected classes.
Relevant Case Law
Lee v. Hertz Corp.
Mandala v. NTT Data, Inc.
Wilson v. Maricopa County Community College Dist. Governing Board
HR Insight
Jawonio
New City, New York
Depending on where you are located, the answer might be different, says Chief HR Officer Theresa Parker.
For example, in New York, there is an eight-factor analysis that you must perform to determine whether you can reasonably conclude that employing the candidate would pose an unreasonable risk to the health and safety of others. This is a situation where I would always suggest consulting legal counsel.
Razorleaf
Ypsilanti, Michigan
Director of Recruitment Jena James says that several factors need to be evaluated when someone has a criminal conviction, including:
- How long ago was it?
- Does the crime put other people who might work with the person at risk?
- Does the crime mean this person should have limited access to company assets, such as dealing with money?
Assess whether the crime relates to the job in some capacity and what is the level of potential risk or harm. Also, check with EEOC guidelines and state laws before both making a determination and speaking with the candidate about the conviction.
The Malish Corporation
Mentor, Ohio
Typically, you can look back seven years at criminal history, says HR Manager Vicki Hoffman.
If you’ve done a background, and it shows a felony that is relevant to your business or is a violent crime, you will need to follow up with a form your background service should be able to provide stating the reason you are rescinding the offer – such as you hired the person for your accounting department and they will have access to funds and were convicted of a grand larceny charge.
The Cost of Noncompliance
$562K background check mistake: What employers need to know about the FCRA
Who was involved: Yale Associates, Inc., a background check firm, and a class of more than 1,000 individuals whose criminal histories were inaccurately reported on employment background checks.
What happened: The lead plaintiff claimed he lost an employment opportunity because the background check firm provided an inaccurate report to a prospective employer. Specifically, he asserted the report incorrectly “misreport[ed] four summary offenses lodged against him as more serious misdemeanor crimes,” which caused the prospective employer to rescind the job offer. Under Pennsylvania state law, prospective employers are not permitted to consider summary convictions, the lowest level offenses in the state’s Crime Code. The complaint said the inaccurate reports amounted to violations of the Fair Credit Reporting Act.
Result: A federal judge in Pennsylvania approved a $562,000 settlement agreement to resolve the dispute, which included the following payouts:
- The lead plaintiff received $10,000 for being “the main catalyst for the lawsuit,” and
- More than 1,100 class members whose criminal histories were inaccurately reported received $313 each.
Info: Settlement in Noye v. Yale Associates, Inc., 8/15/19.
Suit alleges handling of background check violated FCRA: Company pays $1M
Who was involved: Halstead Management Company, LLC, a New York-based real estate company, and an applicant who was offered a job as a doorman.
What happened: The applicant had no history of criminal convictions, but after a background check erroneously reported that he did, the company rescinded the offer. The applicant filed a lawsuit alleging the company rescinded job offers based on background reports without providing applicants or employees with requisite pre-adverse action notice in violation of the Fair Credit Reporting Act (FCRA).
Result: The company agreed to pay $1,018,375 to resolve the dispute. Of that:
- $583,375 was divided among 1,700 affected class members
- $10,000 went to the named plaintiff as a service award, and
- $425,000 covered the plaintiff’s attorneys’ fees.
Info: Settlement in Jones v. Halstead Management Company, LLC, 9/4/15.
Pre-employment screening policy under the microscope: Company pays $2.7M
Who was involved: Exel Inc., d/b/a/ DHL Supply Chain, a global supply chain management company, and two Black applicants who filed a class-action lawsuit.
What happened: According to the lawsuit, the company’s pre-employment criminal history screening policy disproportionately impacted Black and Hispanic applicants. Specifically, the policy “automatically triggers rejection for certain criminal offenses without any individualized analysis of the applicant or the offense’s relation to the job sought,” the complaint alleged. It further claimed the policy “is not job-related or consistent with business necessity” in violation of Title VII.
Result: The company paid $2.7 million to establish a settlement fund to resolve the dispute.
Info: Settlement in Pickett et al. v. Exel Inc., 3/20/23.
Key Takeaways
- Assess whether the conviction is relevant to the job. Look at how the conviction relates to the job’s responsibilities.
- When deciding whether to rescind a job offer based on a conviction, examine the nature and seriousness of the offense; the time that has passed since the offense or the completion of the sentence; and the nature of the job.
- Do not treat people with similar convictions differently based on their race, national origin or other characteristic that is protected by Title VII. Instead, be consistent in your treatment of applicants with similar criminal records.
- Do not refuse to hire an applicant just because they have been arrested.
- Do not use a policy that excludes people with certain criminal records and significantly disadvantages those of a particular race or national origin if the policy does not accurately predict whether the employee will be responsible, reliable or safe.
- Make sure any criminal conviction record you rely on is accurate.
- Give applicants an opportunity to explain their criminal record.
- Train managers and other decision-makers about Title VII requirements in this area.
- Limit inquiries about criminal records to offenses that are relevant to the job, and maintain the confidentiality of this information.
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