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Should You Leave the Past in the Past?

So, you’ve found the perfect employee. They are qualified, smart, motivated, and charm your socks off in the interview. However, when you go to run their background, it comes back with a giant red flag: Your dream candidate has a storied past. Now what?

The first thing to know is that it is getting increasingly difficult to ascertain someone’s criminal record history right off the bat. Ban the Box legislation – which has been enacted in 34 states and over 150 cities – prohibits employers from asking about an individual’s criminal history on application forms as part of a broader effort to give them a fairer chance at future employment. This legislation is wonderful in that it prevents resumes from being needlessly tossed aside, but some critics argue that it can waste HR’s time if they simply can’t hire someone with that degree of a conviction.

Now, let’s discuss the legal angle here because the law can say that you are guilty of discrimination if you decline to give this employee a fair shake at an interview or if you decide to rescind a job offer based upon the results of that background check.

The idea here is that not all crimes are created equal and it very much depends on the setting in which the person plans to work. An individual with a felony history of check fraud wouldn’t be an ideal candidate for a bank teller position, but shouldn’t necessarily be disqualified from working in a non-finance related business.

However, a person with misdemeanors for driving under the influence probably wouldn’t be best suited for a role as a train operator, but could certainly work in a job that keeps them away from heavy machinery.

From an employer perspective, you are authorized to decline to give a job offer to someone on the grounds that you don’t want to be charged with negligent hiring. This occurs when an employer is aware that a potential employee knew or should have known that a candidate was unfit for a particular position, or worse, could cause harm to themselves or others as a result of being on the job. Think about the train driver referenced in the example above: if he falls off the wagon on the job, he could harm countless people through his actions and you would be on the hook – both legally and financially speaking – for not considering this in your hiring decision.

In rendering a decision about what to do with the candidate with a background history that you don’t think will work for your company, there are a few steps that you must take:

  • Make sure that your decision doesn’t violate Title VII of the Civil Rights Act of 1964, as amended. While states and municipalities may have their own rules for rendering such decisions, but the federal statute trumps these in all cases.
  • The details of the proposed candidate’s job must be explicitly outlined in the job posting for the job or be specifically stated in your employee handbook so that if challenged, you can state exactly why they do not qualify for the position or in the industry in general.
  • You must be able to show that your decision not to hire this individual is based on “business necessity,” in that you can prove that because of their criminal record status, it wouldn’t be safe or sensible for them to work for your company. Specifically, the employer can exclude a worker if:
    • They validate that there is data that proves that criminal conduct is related to subsequent work performance or behaviors; or
    • The employer administers a targeted screen that they developed that considers the nature of the crime, the time elapsed, and the nature of the job to determine whether the employer’s policy prohibits them from getting the job.

Delivering the news to the candidate requires the most work on the back end as this will inform how much work you have to do to deliver the news.

  • During the application phase, share with the candidate that a background check for criminal convictions will be performed
  • Note specifically on the job description that a background screen will be required for this particular role and that hiring decisions may be made based on the context of these findings
  • Be sure that the vendor you use to perform the background check is in compliance with all federal and state laws when it comes to criminal conviction searches and reporting (if you’re an Abel member, give us a call and we’ll help guide you through!) Click here for a great overview.
  • Include language in any offer letters provided that states that the offer is contingent upon successful completion of the background check and that their employment is “at will” for both parties.

Once you are sure that you are legally allowed to deny employment to this individual, you now have to deliver the news that you will not be moving forward with their candidacy.

This is always a sensitive conversation and one that should thus be handled with reverence. If they came to you through a head hunter or placement agency, you can easily pass the buck to them to handle the news, but if they came through a traditional job posting or other independent means, this is a conversation that you’ll have to handle.

A best practice is to state the facts. Provide information on what was discovered, what the job posting/your employee handbook says about these types of violations, and why it precludes them from employment at this time. If new information comes to light during the conversation, acknowledge that mistakes can happen in the review process and offer to reconsider their candidacy provided appropriate documentation backs up these claims.

However, we caution against providing false hope or straying from what is stated by your company in terms of policies regarding hiring practices.

Finally, a word on arrests. Employers shouldn’t rely on arrest records alone as evidence of criminal behavior.

According to the Equal Employment Opportunity Commission (EEOC), “the fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed.” Further, they warn that arrest records may not adequately report the “final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted” because most records databases aren’t set up to capture and report these final decisions. These records may contain inaccuracies or may have been expunged or sealed and thus are not a reliable reflection on the individual.

However, the EEOC does note that finding an arrest record “may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity” and thus could be considered akin to a criminal conviction, within reason.

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