“We don’t hire criminals” – is what I recall a prospective client telling me in our first meeting. They were concerned about something that person might do, who they might hurt, steal from, how reliable they’d be and whether they’d do bad things that would torpedo the reputation of their business.

My obligation was to tell them about the guidance that had come out of the EEOC (Equal Employment Opportunity Commission) as to how and when they could take someone’s criminal past into account – but they didn’t care. It wasn’t worth the risk to hire one of “those” people (their words).

If you’re a business that hires employees, at some point you’ll be faced with the knowledge that a candidate has a criminal background. Many times, the candidate will self-disclose their offenses, explain their bad choices, and how they’ve been on a good path for a period of time.

So what can you do when faced with this information? Let’s assume that they’re qualified to perform the job, you want to give them a chance and feel comfortable doing so, how should you proceed?

Here’s some practical considerations:

  • Job Related Exclusions and Business Necessity – you’d likely go down this path on your own, but the EEOC guidance states in essence, that if you’re going to exclude an applicant for consideration based on criminal history, it has to be for factors relevant to the job and take into consideration the timeframe of the offense.
    • Hiring an Accountant? – a fraud or embezzlement conviction would definitely allow you to exclude that person.
    • Hiring a Roofer? – the Theft conviction likely wouldn’t apply if they were otherwise qualified for the job
  • Insurance Underwriting Concerns – Depending on the nature of your work, the job in question and the applicant’s past offense(s) it’s reasonable to think your insurance company would want certain employment practices in place, such as:
    • Drug Testing? – regardless of your thoughts on this matter or specific substances, a risk adverse insurance company might expect that you have an established pre-employment drug screen process – combined with an MRO (Medical Review Officer) procedure – to research any positive results
    • Reasonable Suspicion Guidelines? – let’s say your star employee shows up with slurred speech and just seems “out of it.” That could mean many things that don’t necessarily equate with a substance abuse problem. Do you a documented procedure in your employee handbook outlining how, when and under what circumstances you’ll ask an employee for a drug test?
    • Post-Accident Drug Testing – to be administered promptly after a workplace accident.
    • Background/Reference Checks? – as a condition of hiring, to verify that the background, work history and criminal information provided can be independently verified.

While the employment practices above might appear standard to you, there is not universal agreement that they’re useful. One large corporation I worked for, actively studied dropping a pre-employment drug screening altogether – as it didn’t seem to function as a check on the drug use of existing employees.

The nuances in these situations are many and by no means black and white. If you haven’t wrestled with this circumstance yet, there’s a strong chance you will. To avoid legal risk, it’s imperative to ensure that your processes don’t write off applicants without a documented process.

We encourage you to contact your HR Professional to discuss your use of the employment practices above and any specific hiring circumstances that concern you.