Can Employers Automatically Exclude Job Applicants with Criminal Records?
By admin at 26 July, 2010, 6:21 pm
By Lester Rosen, President of ESR
From the ESR Mail Box
Question:
Can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes that use a system to identity applicants with a criminal record?
Pledge:
The one thing that an employer can be advised with some certainty is that any sort of automatic policy based upon a person’s status as an ex-offender is very likely to expose a firm to a federal or disorder Equal Employment Opportunity Commission (EEOC) issue. That is why nearly every employment application not only questions about past criminal records but also has a disclaimer that a criminal record will not be used automatically. The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record. A blanket policy does not allow consideration of the individual, taking into account factors such as the scenery and gravity of the past offense, the relevance to the job and how much time has passed. In fact, in 2009, New York passed a law that requires an employer to review a longer list of factors related to a past crimes. This is why ESR advises clients to deal with any sot of automated software processes with extremes caution.
The thought is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to “pre-judge.” Of course, that does not mean a sex offender should be supervising a playground or an embezzler usage money, but the bottom-line is that there is a job for all, although not all is entitle to every job. As a society, we cannot afford to build extra prisons then schools or hospital, so there is a huge need to get past offenders employed. In fact, nationally, it expenditure about $30,000 a year to incarcerate a person. If a person leaves jail or prison and cannot get a job, there is a high likelihood of recidivism and extra expenditure to society.
On the other hand, they need to be employed in an apt job, to avoid harm to the firm or the public and to avoid lawsuits for negligent hiring. There is no perfect solution, but as with many things associated with HR, it is the process that is critical. The process should certainly allow for individual consideration of all applicant on their qualities as it relates to a job. Of course, if a person has lied on level application and was dishonest about past criminal history then the employer may rightly be concerned about the lack of honesty on the application especially if the application clearly indicates hat any notes omission or misinformation is grounds to terminate the hiring process or employment, no matter when learned.
There are numerous ESR blogs on the subject that can help employers in navigating these issues:
- 2010 Trend on Increased Focus on Whether Credit Reports and Criminal Records are Discriminatory
- Discrimination Lawsuit Shows Importance of Employer Policy on the Use of Criminal Records During Background Checks
- The Unfair Use of Credit Reports and Criminal Records and the EEOC E-Race Initiative
For extra in rank about background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.
Sources:
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