ENSURE CRIMINAL BACKGROUND CHECKS ON JOB APPLICANTS ARE NON-DISCRIMINATORY AND LAWFUL
Many employers understandably want to perform a criminal background check on potential employees. It is possible for employers to lawfully ask about criminal convictions on applications or to administer a criminal background check. However, it is not “open season” on criminal background checks, and you need to be careful when conducting this kind of inquiry.
In West Virginia, inquiries into criminal convictions should not request information regarding convictions or records that have been expunged or sealed by a court. Employers should provide applicants with a disclaimer stating that a conviction record will not necessarily be a bar to employment. Also, applicants will need to consent in writing to a criminal background check in this state.
As to federal law, the Equal Employment Opportunity Commission (EEOC) has provided guidance for employers’ use of criminal background checks. The purpose of this guidance is to ensure that the use of criminal background checks does not result in discrimination. That is, use of criminal background checks (1) must not result in disproportionately excluding people of a particular race, national origin, color, religion, or sex;  and (2) must be “job related for the positions(s) in question and consistent with business necessity” within the meaning of Title VII of the Civil Rights Act of 1964. Check out this blog post by Mark Jeffries on a couple of recent cases where the courts were dubious about this position by the EEOC.
The EEOC recommends a two-step process. First, the EEOC recommends using a “‘targeted’ screen of criminal records” that considers three factors: the nature of the crime, the time elapsed, and the nature of the job. Second, the EEOC recommends using individualized assessment for the people who are screened out to ensure that qualified applicants (or employees) were not mistakenly screened out “based on incorrect, incomplete, or irrelevant information.” This second step also allows individuals to correct any errors that exist in their records.
The EEOC has also stated, however, that an individualized assessment may not be necessary as long as the employer “can demonstrate that its targeted screen is always job related and consistent with business necessity.” That is, the screen must be very closely related (have “a demonstrably tight nexus”) to the job. Nevertheless, the EEOC has also stated that individualized assessment can help an employer avoid liability in case the employer is unable to demonstrate that its screen is always job related and in line with business necessity. Therefore, conducting an individualized assessment is wise.
When reviewing the results of a criminal background check, consider the amount of time that has elapsed since any conviction, whether the applicant has been in some way rehabilitated, and whether the particular job for which the applicant has applied has a tight nexus to the type of conviction(s) for which you are screening. On a related note, it is also a good idea to have written job descriptions that detail each position’s essential requirements in order to help determine whether such a nexus exists. Ultimately, you may want to contact your attorney for advice concerning any criminal background checks you want to run on your particular job applicants.