An Employment Law Tightrope: Criminal Background Checks
Corporate Counsel (06/18/15) Alan D. Berkowitz; Kate W. Ericsson
Employers often find it difficult to determine when they are allowed to consider an individual's criminal history in making employment decisions, wanting to minimize their liability by having enough information about prospective employees but also having to navigate "ban the box" laws in 17 states that restrict their use of criminal history information. Further complicating matters are laws being enacted by some states, like Pennsylvania, that require certain employers to conduct background checks.
Employers also must be aware of guidance from the U.S. Equal Employment Opportunity Commission calling on them to remove questions about prior convictions from employment applications and address the issue later in the selection process. Thus, employers would be wise to draft clear and specific policies on how the information gleaned from background checks is being used, consider the kinds of information and timing of inquiries allowed under the relevant laws, be aware of the information collected by third-party vendors and how it is used, avoid blanket exclusions, and give applicants an opportunity to explain their criminal history.
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