Jobs Employment, Career Job, Employment Job

 By Les Rosen
President, Employment Screening Resources

An alternative wording for the first question that avoids the problems associated with certain minor convictions is to use the following:

 

" Have you ever been convicted of a felony, or a misdemeanor involving any violent act, use or possession of a weapon or act of dishonesty for which the record has not been sealed or expunged?"

It is normally recommend that the application contain language that the conviction of a crime will not automatically result in a denial of employment. Automatic disqualification could be a violation of state and federal discrimination laws. However, an employer may deny employment if the employer can establish a business-related reason for the refusal to hire.

In addition although in some states, such as California, there are restriction as to how far back a background screening firm can go back in the records, employers have no such limitation.  Of course, under the Equal Employment Opportunities Commission rules, an older criminal matter is less likely to be relevant to hiring, there is no limitation for employers in terms of phrasing the question 

In addition, all applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application or the hiring process will result in disqualification, or termination of employment. Where an applicant has failed to honestly disclose the existence of a criminal conviction, then the employer's concern may be the lack of honesty involved. Negative information honestly disclosed in an interview and explained may well have no effect, especially if the applicant otherwise has an excellent and verified work history. However, if the applicant is dishonest and the information is first revealed by a background check, then the failure to hire may be justified because of the false application or dishonesty in the interview. That is why it is important to have broad enough language in the application to cover all relevant offenses.

 

It is usually preferable to have completed the criminal check (as well as the entire background screening) before an employment offer is made or employment starts. An employer may offer or start employment conditioned on the background screening. However, once a person starts, an employer can be in a more difficult position in ending employment if the report is unsatisfactory to the employer.  It is important to specify in a written offer letter that employment is conditioned upon the receipt by the employer of a background report that is satisfactory to the employer.  The language must specify that the report must be satisfactory to the employer, so an employer is not put in a position  of debating  what constitutes a satisfactory report. 

It is also important to understand that there is no national database that can be used to obtain criminal records. Background firms must physically check each courthouse where a person has lived, worked or studied that may contain a criminal record. That is why it is important to verify an applicant's employment history to ensure there are no unexplained gaps in an applicant's whereabouts. There have many instances of gaps in employment being related to criminal convictions.

Please note: This report is not intended and should not be taken as legal advice. It is based upon generally accepted human resources and industry practices. An employer should contact their own attorney or legal department to answer any legal questions.

 

Note:  The various rules for California employers are found in the federal Fair Credit Reporting Act, the California Labor Code, the California Civil Code, the rules of the Fair Employment and Housing Commission contained in the California Code of Regulations, as well as federal case law interpreting equal employment opportunity laws and decisions by the federal Equal Employment Opportunity Commission.

For additional information, please contact Employment Screening Resources at 888.999.4474, or visit our web site at www.ESRcheck.com.