Hot topics in pre-employment screening: Part I

Employers should be aware of numerous issues when conducting background checks.

This is the first of a two-part series on pre-employment screening.

An increasing number of employers are conducting some form of pre-employment screening on job applicants. Employers are researching not only a candidate’s educational qualifications and prior job history, but also a candidate’s criminal history, credit history and online presence. At the same time, the Equal Employment Opportunity Commission (EEOC) and various states have begun scrutinizing the legality of some of these practices.

Similarly, Massachusetts law bars employers from asking criminal history questions on an applicant’s initial written job application, unless otherwise required by law. Unlike Philadelphia’s new law, however, Massachusetts employers may still ask applicants about their criminal history during an interview.

Hawaii also has a “ban the box” law prohibiting public and private employers, with some exceptions, from inquiring about and considering an applicant’s criminal record on a job application. Hawaii law goes even further by allowing an employer to obtain and consider such information only after a conditional offer of employment has been extended. Several other states (California, Connecticut, Minnesota and New Mexico) have similar “ban the box” laws that apply to public sector employers, and many states and cities are considering such legislation.

Use of Criminal Records

Arrest Records

Accordingly, employers are advised to consult applicable state laws before making any hiring decisions based on conviction history.

Although no federal law restricts or prohibits employer use of criminal records, the EEOC has renewed its focus on the use of convictions in employment decisions. The EEOC previously issued a series of guidelines and policy statements on the use of criminal records and is considering updating them. Although individuals with criminal records are not a protected class under Title VII, the EEOC has determined employer policies that exclude individuals from employment on the basis of their arrest and conviction records (i.e., blanket policies) may violate Title VII because such policies disproportionately exclude minorities. The EEOC made this determination in light of statistics showing that minorities are arrested and convicted at a rate significantly in excess of their representation in the population.


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Carrie B. Rosen

Carrie B. Rosen is a member in Cozen O’Connor’s labor & employment practice group. She concentrates her practice in the representation of management in all...

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