Criminal Background Checks In The US: A Comprehensive Guide

1. Criminal Background Checks In The US: A Comprehensive Guide

2. 3 4 Introduction What is a Criminal Background Check? 5 Why Conduct Criminal Background Checks? What Are The Different Types of Criminal Record Checks 7 The Role Played By Criminal History in the Hiring Process 9 Steps to Conduct EEOC Compliant Criminal Background Checks 12 15 How to evaluate a Candidate's Criminal History? How Far is a Criminal Records Check Reportable as Per FCRA Compliance? 18 20 Conclusion CONTENT

3. INTRODUCTION With the recent advancements in the information technology coupled with the growing concern about employer liability there has been an increased demand for criminal background checks in the U.S. According to a survey conducted by SHRM, “In 2012, 86% of employers conducted criminal history checks for at least some jobs and 69% conducted criminal history checks on all of their job applicants.” The efect of the use of criminal background checks can be widespread as an estimated 65 million people in the United States have an arrest or conviction record that can show up on a routine criminal background check. www.cfirstcorp.com Even though criminal background checks should be done for all candidates, there is a general bias against racial minorities. In order to combat this situation, certain laws have been established that restrict the use of criminal background checks during the selection and evaluation process to ensure unbiased hiring of candidates in the US. Some of them include: Ban-the-Box legislation, Title VII of the Civil Rights Act of 1964 and EEOC. This guide has been prepared for employers with the objective of providing comprehensive information about criminal background checks in the US. It deals with diferent laws governing criminal background checks and the diferent ways to deal with them as an employer - the criterion for evaluating candidate’s criminal history, how far is a criminal records check reportable as per FCRA compliance, the process to make your criminal background checks EEOC complaint and much more. 3

4. www.cfirstcorp.com What is Criminal Background Check? A criminal background check is simply a check that looks for criminal felony. It is a critical step towards comprehensive employment check programme for various organizations and is especially conducted for positions that involve working with positions of trust or working with vulnerable populations. It can involve employers from diferent sectors like: fnancial services, education, air transportation, government organizations and healthcare. There are specifc state criminal background checks that are applicable for crimes committed by the candidate in a specifc state. In the criminal background check reports, you can see the candidate’s: Name and known aliases Charges or convictions Prison terms Presence in any sex ofender registries The information pertaining to criminal background check can be derived from police reports, court records and other resources. This ensures that you get a complete picture of the candidate’s background. 4

5. www.cfirstcorp.com Why Conduct Criminal Background Check? It has been estimated that a single bad hire can cost your organization thousands of dollars. This makes it very important for you to collect as much as information as possible before bringing on a new employee thereby making your hiring process airtight. Although, you can learn about the candidate during the interview, by performing criminal background check on the potential hire you can ensure making the right hiring decision. Here are some more specifc reasons. 5

6. www.cfirstcorp.com Ensures safety of employees working in your organization As an employer, you do not want to recruit someone who has a dangerous past to be a part of your staf. It is important to keep your current employees feel safe at work by selecting candidate with a clean past. By evaluating the criminal history of the candidate you can ensure that the person you are recruiting does not pose a threat to anyone else in the organization. If a person has multiple convictions for assault, he/she can be prone to engage in fghts with your current employees and can end up hurting them. Ensures safety of your customers In case you are in a business where customers visit your organization or your employees go to them it is important to ensure their safety. In case you provide a service that requires employees to go to people’s homes you do not want to hire a person who has a history of assault, theft or something worse. On top of that, just imagine what a great marketing tool it would be if you tell your potential customers about vetting all your employees from a reputed background check company. BY EVALUATING THE CRIMINAL HISTORY OF THE CANDIDATE YOU CAN ENSURE THAT THE PERSON YOU ARE RECRUITING DOES NOT POSE A THREAT TO ANYONE ELSE IN THE ORGANIZATION. Less chances of theft If you are running a retail organization it is not a good idea to hire someone with three convictions for retail theft in the past fve years. If you are looking to hire a manager who will have access to large heaps of cash you do not want to hire someone with a robbery conviction in the past year putting you at risk of losing the money. If your employees have access to sensitive data like social security numbers then it would be wise to know whether the candidate has ever been convicted with identity theft or fraud. Gives you peace of mind Getting a clean criminal background check on a new employee gives you peace of mind that you are not bringing in someone who can pose threat to your current employees. It also shows that you care for the safety and well-being of your current staf. 6

7. www.cfirstcorp.com What Are The Different Types of Criminal Record Checks Employers often commit mistakes by not knowing the diferent choices available to them when it comes to conducting criminal background checks. Criminal background checks is not limited to state and federal reporting. There are various jurisdictions nationwide and the major problem is that these jurisdictions do not communicate with each other for most part. So, if a crime was committed in one jurisdiction, you may not be able to search for the criminal history if you are not sure where to look. 7

8. www.cfirstcorp.com County Criminal Records Search It lets you search for a name for any criminal history including Felony and misdemeanours wherever available at the county level throughout the 3100 counties across the United States. You can search for the counties with the help of zip codes provided by the candidate and the zip codes found from the SSN trace. The standard county criminal search period is seven years. YOU CAN SEARCH FOR THE COUNTIES WITH THE HELP OF ZIP CODES PROVIDED BY THE CANDIDATE AND THE ZIP CODES FOUND FROM THE SSN TRACE. THE STANDARD COUNTY CRIMINAL SEARCH PERIOD IS SEVEN YEARS. Statewide Criminal Records Search It helps you search for a name with any criminal history at the state level repositories. But, it is important to note that not all states are available and the overall comprehensiveness of the report will be contingent on the state repository. National Criminal Database and OFAC Search This type of criminal record search will let you search for any criminal history using a name and date of birth in the national criminal database. It consists of millions of ofense records that assist in fnding out convictions in counties not identifed in a Social Security Trace or Credit History Report. It includes FBI Most Wanted/Terrorist Watch Lists Search and Ofce of Foreign Asset Control (OFAC) search. National Sexual & Violent Ofender Search This database consists of all 50 states sexual ofender and violent ofender lists (SOR). District Federal Criminal Records It searches for a name for any criminal history in Federal District repositories (federal crimes). The type of search that you opt for during the criminal background check will vary greatly and give you diferent results. This makes it very important to understand these options carefully and then select the best one according to your specifc requirements. 8

9. www.cfirstcorp.com The Role Played By Criminal History in the Hiring Process Every employer wants to recruit a candidate who has a clean past and can prove to be an invaluable asset for the organization. To achieve that objective sometimes you need to ask about criminal history questions on the job applications of the candidates shortlisted for interview. There are certain laws that prohibit or restrict employers to ask questions pertaining to criminal history to the candidates before they have fnalized a candidate for the open position. 9

10. www.cfirstcorp.com At present, there are 29 USA states and more than 150 cities and counties that have adopted ban the box workplace rules which put restrictions and limitations on employers while inquiring about the criminal history of the candidate. Furthermore, as per National Employment Law Project (NELP), there are several jurisdictions that have adopted workplace policies on criminal background usage. For example, U.S. Equal Employment Opportunity Commission (EEOC) has provided an extensive enforcement guidance on what is acceptable and what isn’t under Title VII of the Civil Rights Act of 1964. Read more: Background Screening Legal Compliance in the US - A Complete Guide So, the question is whether employers should or should not ask criminal conviction questions in job application forms? Today there are more than 223 million people who live in jurisdictions that have accepted ban the box policies according to NELP. If your organization is located in any one of these jurisdictions, it is important for you to understand the state or local rules that are applicable while conducting criminal background check during the hiring process. FURTHERMORE, AS PER NATIONAL EMPLOYMENT LAW PROJECT (NELP), THERE ARE SEVERAL JURISDICTIONS THAT HAVE ADOPTED WORKPLACE POLICIES ON CRIMINAL BACKGROUND USAGE. 10

11. www.cfirstcorp.com Some of the things to be considered include: The local jurisdiction determines whether an employer can ask for a criminal conviction. There are certain state and local jurisdictions that prohibit employers from asking conviction history question on job applications. While there are others that do not allow employers to ask such question until later in the hiring process. This can be after the frst round of interview or after you ofer a conditional ofer of employment to the candidate. YOU MAY BE ABLE TO ASK CRIMINAL HISTORY QUESTIONS WITHIN A CERTAIN NUMBER OF YEARS OR MIGHT BE PROHIBITED FROM ASKING ABOUT OR TAKING INTO CONSIDERATION EXPUNGED OR SEALED RECORDS. Employers may be confned when it comes to the scope of criminal record questions. You may be able to ask criminal history questions within a certain number of years or might be prohibited from asking about or taking into consideration expunged or sealed records. Currently there are no federal laws that restrict employers from asking criminal history questions. But, EEOC has levied certain guidelines that suggest employers remove criminal history questions until the later stages of recruitment. According to the EEOC guidelines, even while asking the criminal history questions, care should be taken that the questions are job related and are consistent according to the business requirement to conduct the job. While using criminal background checks, it is important for the employer to ensure that the candidate is not discriminated according to national origin, caste, race, religion, disability, genetic information or age. You might not be able to exclude an individual with criminal records from consideration if the exclusion is not job related or not consistent with your business necessity. 11

12. www.cfirstcorp.com Steps to Conduct EEOC Compliant Criminal Background Checks If you think criminal background check is easy then you might have been lucky to have never stepped into the quandary of fnding a conviction charge against your candidate. But, the fact is that today, employers are facing a very rough situation as it has become more and more difcult for them to disqualify a candidate from the job solely because of criminal charges against them. Thanks to EEOC guidelines, employers need to give another chance to the candidates if they have done a criminal activity in the past if it is not directly hampering their work. Today, there is a need for a documented policy and process that will help you to determine whether a particular criminal record automatically disqualifes a candidate from the job. The key is to ensure that the process is consistent, fair and compliant to evaluate the prospective candidates in the best possible manner without any subconscious bias. Let us look at the diferent steps that will help you to prepare for the inevitable and come up with a legal solution while conducting criminal background checks on prospective candidates: 12

13. www.cfirstcorp.com Learn about the diferent laws that afect criminal background check before fnalizing a policy The very frst step to conduct EEOC complaint criminal background checks is educating yourself about the diferent laws that are currently afecting criminal background check. This includes: Fair Credit Reporting Act (FCRA), state and local ban-the-box rules and federal anti-discrimination laws. These laws may restrict you to ask criminal history questions to the candidate until the later stages of the hiring process. This is typically after the interview stage. According to EEOC, employers need to be fair when it comes to hiring candidates when it comes to dealing with their criminal history. One way to do that is by taking into consideration the nature of the ofense, the time that has passed since the ofense, the severity of the ofence and fnally how the conviction relates to the job. ACCORDING TO EEOC, EMPLOYERS NEED TO BE FAIR WHEN IT COMES TO HIRING CANDIDATES WHEN IT COMES TO DEALING WITH THEIR CRIMINAL HISTORY. ONE WAY TO DO THAT IS BY TAKING INTO CONSIDERATION THE NATURE OF THE OFFENSE, THE TIME THAT HAS PASSED SINCE THE OFFENSE, THE SEVERITY OF THE OFFENCE AND FINALLY HOW THE CONVICTION RELATES TO THE JOB. Defne the hiring policy criteria to avoid any confusion In order to avoid any bias from afecting the hiring decision, employers are using screening policies to tackle the diferent types of crimes that will automatically disqualify a candidate from certain jobs. These criteria will work as a base to help you make the right decision when it comes to hiring a candidate with a criminal past. Blanket policies where certain candidates are disqualifed for certain positions by law are not encouraged by EEOC guidelines. Inform the candidate how the criminal background check will have a direct impact on their hiring decision The employer needs to inform the candidate that in case any criminal record is found while conducting the criminal background check it will have a direct impact on their hiring decision. If the candidate thinks appropriate, they can raise an issue pertaining to the check and inform the employer about the circumstances if at all they conducted any criminal activity. They can even raise their case as to why they should not be excluded from the hiring process. This process can be done in the form of written, telephonic or personal communication. 13

14. www.cfirstcorp.com Give a chance to the candidate to take an adverse action In case you decide to disqualify the candidate on the basis of their past criminal record, you are required to follow two steps of adverse action which includes: pre-adverse and fnal adverse action process. These steps need to be followed as per FCRA guidelines. This includes employers notifying and providing relevant details to the candidate about the negative results of the criminal background check. In case, the candidate deems ft he/she can challenge for any discrepancies and clear the negative information that can result in their disqualifcation for employment. Resolving the disputes, if any The fnal step is to ensure that the information that has been found in the fnal report is accurate to the maximum extent. But, it is important to note that the public records may not be completely error free. The law gives a right to the candidate to contact the background check provider directly to dispute the accuracy of the report. Then the background check provider will inform the employer that the dispute has been raised by the candidate and is pending. They can investigate on the details which needs to be completed within a month’s time. It is equally important for the employer to protect the privacy and confdentiality of the candidate throughout the dispute process. It is important to be compliant with the labor laws while conducting an EEOC compliant criminal background check. For best results, you need to hire a legal counsel and take the services of a professional background screening partner who has requisite experience in dealing with the compliance issues. Read more: Ingredients of an Ideal Background Screening Vendor 14

15. www.cfirstcorp.com How to evaluate a Candidate's Criminal History? EEOC policy and various Ban the Box statutes around the US require employers to consider individualized assessment before excluding a candidate on the basis of their criminal history. Let us look at some of the most important criteria that will help you to evaluate the criminal history of a candidate. 15

16. www.cfirstcorp.com The nature and seriousness of the criminal ofence This criteria includes the gravity of the criminal ofence conducted by the candidate by including the pattern and persistency of the convictions. The time duration lapsed after the ofence or completion of the sentence If the candidate only has a single conviction in the past which is several years ago that does not imply that he/she will again commit the crime. According to EEOC, employers need to look at the pattern in context and not in rigid formulas. EMPLOYERS NEED TO IDENTIFY THOSE JOB DESCRIPTIONS THAT HELP EXCLUDE SCENAR- IOS THAT CAN BE A PART OF THE JOB. The nature of the job held or sought There is a connection between the nature of the crime and the nature of the job. Employers need to identify those job descriptions that help exclude scenarios that can be a part of the job. If there was any intimidation or threat involved, it should be reviewed with the help of an individualized assessment. Individualized assessment Based on a preliminary criminal background check employers will perform an individualized assessment to determine which candidates will be excluded based on the crimes committed. The candidates will be notifed with the reason for their exclusion by giving them an opportunity to debate about the information found in the report. An individualized assessment can cover a wide array of factors as per EEOC guidelines, including: 16

17. www.cfirstcorp.com Comprehensive details or circumstances surrounding the crime; The number of ofences the candidate has been convicted for; The age of the candidate; Evidence of rehabilitation like education or training; The work history of the candidate, including whether they have been successfully employed in other similar positions; The relevance and character of the references of the candidate. 17

18. www.cfirstcorp.com How Far is a Criminal Records Check Reportable as Per FCRA Compliance? Federal government has set time restrictions when it comes to what can be reported in a background check for employment. But, when it comes to criminal conviction there is no such federal time limit. While there is no time limit set by the federal government, there are certain state regulations that need to be met. For example; the reporting of criminal convictions that are older than 7 years from the release, disposition or parole are not allowed in Texas. But, this limitation does not include those candidates who are applying for a position with a salary of at least $ 75,000. While there are certain U.S. states where certain types of information like arrests without conviction are not considered while conducting criminal background check for employment. 18

19. www.cfirstcorp.com Time Restraints on Criminal Background Checks All states follow Federal FCRA regulations, and 36 states (including Washington, D.C.) do not have restrictions beyond the FCRA Laws. You can report all criminal convictions without time frame restrictions with the following exceptions: Bankruptcies can’t be reported after 10 years Civil suits and civil judgments can’t be reported after 7 years Records of arrest can’t be reported after 7 years Paid tax liens can’t be reported after 7 years All negative information (except for criminal convictions) can’t be reported after 7 years The following states have restrictions beyond the Federal FCRA Laws: Criminal Convictions: 5 states can only report convictions back 7 years based on the disposition date Hawaii can report convictions back 10 years based on the disposition date Salary Exemptions: In some states, convictions, no matter how old, may be reported if the applicant is expected to earn a certain salary when hired. Colorado and Texas: expected salary – $75,000 or more New York: expected salary – $25,000 or more Kansas, Massachusetts, Maryland, New Hampshire, and Washington: expected salary – $20,000 or more Non-Convictions: In California, New York, and Kentucky, non-convictions can’t be reported at all, regardless of age, except for pending charges. In 11 states, non-convictions can be reported back 7 years Read more: 2018 Statewide Criminal Conviction Time Reporting Recommendations 19

21. www.cfirstcorp.com Always be up to date with the state, city and county laws afecting criminal background checks. Consider an individual assessment approach by avoiding blanket policies. Consider the nature of the job that the candidate is seeking, the amount of time that has lapsed since their last ofence and the nature and gravity of their ofence. There are certain industries that require employers to get criminal conviction histories including: education, security, healthcare, policing, etc. Always be compliant with the state and local laws governing these background checks. Never reject a candidate only on the basis of convictions as arrests are not the proof for criminal ofence. Give an opportunity to the candidate to explain their criminal records before rejecting them. Always discuss with the candidate about the factors that you considered and the reason for reaching to a conclusion irrespective of whether you are hiring them or not. Once you taken the things mentioned in this eBook seriously, you will be able to easily conduct criminal background checks in compliance with the legal laws afecting it in the country. E VIOLENCE AND PROTECTION FROM NEGATIVE PUBLICITY. THERE HAS BEEN STATISTICS TO BACK WORKPLACE VIOLENCE. ACCORDING TO NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (NIOSH), APPROXIMATELY 1,700,000 EMPLOYEES ARE INJURED EVERY YEAR DUE TO WORKPLACE VIOLENCE WHILE THE NATIONAL CENTRE FOR VICTIMS OF CRIME REPORTED THAT ONE IN SIX VIOLENT CRIMES EXPERIENCED BY U.S. RESIDENTS ARE IN WORKPLACE. 21

22. What is cFIRST? cFIRST, based in Cincinnati, Ohio and Bangalore, India, provides cost-effective and customized background screening solutions. We are ISO 27001:2013 certified, NAPBS and NASSCOM NSR empaneled and a trusted source of background check information for organizations ranging from small, local business owners to global Fortune 500 companies. sales@cfirstcorp.com www.cfirstcorp.com +91 953-889-5291