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Doing Background Checks Right (Part Two)

After complying with all of the procedural requirements of the Fair Credit Reporting Act, what are you going to do about that five-year old DWI conviction, the two-year old bad check conviction, or that very recent assault conviction that your recent star college grad applicant pled guilty to after getting into a barroom fight during Spring Break in his junior year?

Increasingly, more and more states and municipalities are incorporating the EEOC’s 2012 guidance on best practices for using arrest and conviction records. This guidance cautions employers against having blanket policies for disqualifying employees since such policies could have a disparate impact on certain protected groups. The EEOC proposes that employers analyze the relationship, if any, between the criminal conviction and the specific job for which the candidate is being hired.

In making this analysis, employers should consider the nature and gravity of the offense, the time that has passed since the offense occurred, and the nature of the job sought. A single DWI conviction when the applicant was very young and which occurred years ago may not be an automatic reason to disqualify an applicant for some positions. But a recent conviction for check kiting might disqualify a candidate for a position in your accounting department, even though it would be less relevant for a machinist position.

Of the three convictions mentioned at the beginning of this post, the barroom-fight conviction may be the most problematic from a human resource specialist’s perspective since it could signal potential anger management issues or reveal someone who is prone to subject his coworkers to a hostile work environment. In assessing this particular conviction, the employer may want to engage the candidate in a more fulsome discussion about what happened. Did the candidate learn something from this experience? How does the candidate deal with conflict today? Does the candidate appear to have empathy for people who are different from him? All of these can be valid considerations when determining whether a conviction should disqualify the candidate from employment.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.