Skip to content

How Can Employers Legally Conduct Criminal Background Checks? Busting Myths About Criminal Background

By: Rebecca Goldberg

The complicated landscape of laws governing criminal background checks can turn some employers away from engaging in the process at all.  This can seem like it is working well, until you uncover that you just hired a convicted con artist to handle your billing or someone with a history of burglary to work at your home remodeling company.  In many cases, it may be perfectly appropriate to provide a job opportunity to someone with a criminal past, but it is important for employers to make educated decisions in these situations.  This article busts some common criminal background checking myths to help you navigate the process smoothly.

Myth #1: It is unlawful to make an employment decision based on a person’s criminal background.

There is no state or federal law prohibiting employment decisions based on a person’s criminal background, provided that the criminal history was not erased.  However, adopting an overly broad policy or practice of not hiring individuals with a criminal background may result in “disparate impact” against groups who are disproportionately arrested and convicted.  To avoid resulting claims of race discrimination, employers are advised to carefully consider the criminal background and how it would affect the role before deciding.  A trespassing conviction from 20 years ago is unlikely to disqualify someone from working in a pharmacy today, while  a lengthy record of drug convictions with the most recent offense occurring 2 years ago is much more relevant.

Myth #2: I can use a paid people search site to conduct criminal background checks.

Criminal background checks can be conducted through “consumer reporting agencies,” which provide consumer reports to third parties. Because these agencies are highly regulated through the Fair Credit Reporting Act (“FCRA”), some people search sites require that the requester indicate that the information will not be used for various purposes, including employment.  Be sure you are using a service designed for employment-related criminal background checks to ensure the process complies with FCRA.

Myth #3: It is illegal to use Google to search for information about an applicant, check their public social media profiles, or check court records myself.

While some attorneys advise against these practices because you might stumble upon information about protected statuses or find information about another person with the same name, they are not unlawful and do not trigger FCRA requirements because the information is not obtained through a consumer reporting agency.  Your customers and other employees may look up the same information about the person and you will be in a difficult position if you hired someone who is clearly not right for the job based on a simple Google search, whether the issue is a significant criminal history or a series of racist Twitter rants.  If you choose this route, do not actively seek out information about protected statuses (e.g., searching for their name along with words like “disability” or “religion”) and do not unlawfully discriminate based on any information you uncover.  You should also confirm that the information pertains to the correct individual.  Also, if the applicant is applying for a position that requires state licensure, you should check the state licensing website to ensure the license is active and in good standing.

Myth #4: I can just ask the applicant to disclose all criminal history information on the initial application.

There are two problems with this one, in addition to the obvious possibility of lies by omission.  First, employers in Connecticut are not permitted to ask about criminal history on an initial application, but they may do so at other points in the process.  There are exceptions if the employer is required to do so by an applicable state or federal law, or a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Second, when asking about criminal history information, the employer must include a specific disclaimer using particular language, indicating that the applicant need not disclose erased criminal history information.

One benefit of asking for disclosure prior to running a criminal background check is that it allows you to assess whether the individual was forthcoming with the information and potentially decide based on the failure to disclose negative information rather than the underlying criminal conduct.  In addition, sometimes criminal background checks do not pick up every record and this allows the employer to consider the information provided by the applicant.

Myth #5: I can make up my own criminal background check forms and act on negative information immediately.

The process of obtaining and using information from a consumer reporting agency is governed by FCRA and there are very specific notice requirements.  If you work with a reputable vendor, it will often supply the appropriate forms, or you can obtain them from competent legal counsel.  FCRA’s requirements are very technical and you should not modify the forms.  Further, if you intend to take an adverse action based on information from the consumer report (e.g., removing an applicant from consideration), you must follow specified steps designed to allow the individual to correct incorrect information that may have appeared on the report.  Consult with counsel at the time of the event to ensure you follow the process to the letter, as even minor technical violations can result in liability.

Myth #6: Hiring an individual with a criminal background is always a bad idea.

Approximately one-third of the adult population in the United States has a criminal record.  Providing jobs for individuals with a criminal background helps prevent recidivism and reduce poverty.  Research shows that the vast majority of business leaders and human resources professionals report that individuals with criminal backgrounds perform at least as well as employees without criminal records. 

Asking applicants to self-disclose their criminal background, seeking additional information, and running criminal background checks helps to reduce the risk of making a decision without all of the pertinent information. 

Complying with state and federal criminal background check laws can be complicated. The labor and employment attorneys at Berchem Moses PC can help ensure your processes are compliant with all applicable laws.