I am a longtime advocate of pre-employment criminal background checks. So I have watched with resigned acceptance as the EEOC, over 100 states and cities across the United States, and other public advocates have fought to limit the use of an applicant’s criminal history in all but limited circumstances. New York City’s recently enacted “ban the box” ordinance, which took effect September 2, remains one of the most recent legislative responses, but most certainly will not be the last. Driving home the point, on September 8, the EEOC announced a settlement of its long running criminal background screening litigation against BMW in which BMW agreed to pay $1.6 million and offer employment opportunities to approximately 100 former applicants.
Against this “ban the box” tsunami, some employers also have been attacked for not being aggressive enough in rejecting applicants based on their criminal backgrounds. Uber attracted a great deal of attention (and litigation) this summer with the revelation that many Uber drivers were hired notwithstanding significant past criminal convictions. See, for example, New York Times and Time magazine. Implicit in this criticism of Uber is the view that the mere fact of conviction for some crimes, no matter how long ago and regardless of the circumstances, made the applicant forever unfit from driving a car-for-hire.
The “Catch 22” has left some employers in doubt as to the course to take.
This practitioner believes the elements of a good background screening policy include the following:
- An analysis of each position and its essential functions, including degree of unsupervised access to company property, customers, minors and those with special needs.
- Uniform policies and practices to ensure compliance with federal, state and local laws and notice requirements (such as the Fair Credit Reporting Act).
- An opportunity for an applicant to voluntarily disclose relevant past criminal convictions and to explain the circumstances and any mitigating factors (youth, rehabilitation, certificate of relief from disabilities, pardon, and so on).
- An opportunity for an applicant to correct inaccurate criminal conviction reports or explain discrepancies between her or his disclosure and conviction records.
There are many publicly available “best practices” guidelines, two of which can be found here and here.
The debate surrounding the use of criminal convictions is not likely to end soon. Manufacturers will be well served to review their policies and practices accordingly.