Outten & Golden partner Ossai Miazad discusses criminal background checks for employment. Ms. Miazad says 80% of employers reporting the use of criminal background checks. Criminal background checks are most prevalent for jobs working with children, the elderly, and people with disabilities. Federal employees and financial service employees are also likely to be required to submit to a criminal background check.
Ossai also cites that criminal background check are inherently biased against African Americans and Latinos due to the disproportionate impact of the criminal justice system against those communities (more likely to face arrest and convictions).
The U.S. Equal Employment Opportunity Commission has issued regulations that give guidance to employers as to how they should administer their screens. These regulations require the employer to take into consideration the nature, severity, and time since the conviction of an applicant. Finally, employers are required to consider if the criminal conviction was job related.
Blanket prohibitions of applicants with a felony background is illegal due to Title VII of the Civil Rights Act of 1964.
Before an employer can make a hiring judgement based on the background report, they must take several steps:
1. Provide the report to the applicant.
2. Give enough time for the applicant to correct any mistakes. An arrest may be reported, but the ultimate dismissal of the case was not. Closed records may also appear.
If employer makes a decision based on the report, the applicant must receive the report.
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