A tiger by the tail
Gavel to Gavelpublished in The Journal Record | October 23, 2014
Back in school, I recall reading the short story The Lady or the Tiger? It’s about a woman made to choose between two fates for her would-be husband, neither of which was particularly pleasant. What she would choose is left for the reader to decide.
Employers face a similar decision when considering criminal background checks. Perform those background checks, and you face liability under the Fair Credit Reporting Act and scrutiny from the Equal Employment Opportunity Commission. Don’t conduct them, and you face negligent hiring liability.
There are risks on both sides. However, most lawyers will tell you that the risks of not doing background checks far outweigh the risks of doing them. The best an employer can do is to limit its liability by doing them correctly.
The FCRA imposes several detailed requirements on most employers that conduct criminal background checks. First, employers must provide a specific, written notice to employees before the background check, and the employee must authorize it in writing. This notice must be a stand-alone document rather than a part of an employee handbook or one of several provisions on the same page. Second, before the employer takes any action based a background check, it must provide the employee notice, a copy of the report, and a summary of his rights under the FCRA. If the employee doesn’t dispute the report, the employer may then take appropriate action, such as termination. However, the employer must provide another written notice to the employee explaining how the information can be disputed further.
Assuming a background check is done correctly, the employer must still navigate additional limits imposed by the EEOC. The EEOC does not permit blanket policies disqualifying all convicted criminals. Rather, it requires that employers consider three factors in a case-by-case analysis of individual backgrounds. Those are the seriousness of the crime, length of time expired since the conviction, and relationship between the crime and the duties of the position. Applying these factors consistently can be a challenge for employers that do a significant amount of hiring.
Consult your counsel to work out the best system for your organization. Remember, failure to think through the details correctly can result in your organization feeling the wrath of both the lady and the tiger.