Magnifying glassThe EEOC has renewed the debate recently on an employer’s use of background checks in hiring.  Nothing new right?  You know you cannot use arrest records but only convictions because in this country, all are innocent until proven guilty.  But the renewed debate is whether use of conviction records is unlawfully discriminating against minorities.

In evaluating use of conviction records, employers must balance their exposure for possible “adverse impact” discrimination claims and their exposure for negligent hiring or retention claims.  For more on this debate, The Wall Street Journal has a good post on its Law Blog.

My thoughts?  Continue to use criminal background checks within following parameters:

  • Ask on an application if the applicant has ever been convicted of a crime other than a moving violation in a personal vehicle.
  • Comply with the Fair Credit Reporting Act for doing all background checks.
  • Consider convictions only.
  • Make no categorical rule that a conviction automatically means “no hire” and so state on the application.
  • Consider the factors of years since conviction, type of conviction (felony or misdemeanor), crime involved in light of job applied for (e.g. DUI does not matter unless job requires driving company vehicle).