Now What?
Your applicant has a criminal record

By Stefan Keller

A criminal background check on an applicant that results in a "hit" (or record found) can complicate the hiring decision for any employer, even those who are accustomed to the process of running background checks.

Any criminal record requires analysis before it may be considered grounds for disqualifying the applicant. There are many laws, regulations and policies at federal and state levels that restrict the use of these records in employment decisions. What's more, the status of a record within the criminal justice process can also affect the role it plays in evaluating the applicant.

To illustrate, let's take a look at the hypothetical case of Will I. Beworking, an applicant for a job as a sales associate at the SmartStart Retail store. As part of the application process, Will I. Beworking undergoes a criminal background check. The check turns up a record of a theft charge. As with any criminal charge, many scenarios can ensue once a theft charge is filed and begins the progression through pretrial and court procedures. Let's see how different court case scenarios affect SmartStart Retail's ability to use this criminal record in its decision to offer or deny employment to Will I. Beworking.

Scenario No. 1: The record shows an arrest on a theft charge, but the case was "nolo prossed" or not prosecuted.

In this scenario, SmartStart Retail has more options than may be readily apparent. Contrary to what many employers believe, arrest records are an allowable factor in the hiring decision. The Equal Employment Opportunity Commission's (EEOC) policy guidance on arrest and conviction records states, " ... an arrest record may be used as evidence of conduct upon which an employer makes an employment decision."

But this allowance doesn't mean every arrest record can be grounds for automatic disqualification. The EEOC prohibits the use of arrest records as an "absolute bar" to employment, because statistics have shown certain minorities are arrested at a disproportionate rate, and such use would negatively impact employment opportunities for these groups. Therefore, a blanket policy barring employment to any applicant with an arrest record would violate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race.

Thus, SmartStart Retail can legally take a closer look at Will I. Beworking's theft arrest, albeit carefully. The EEOC states "arrests alone are not reliable evidence that a person has actually committed a crime," but goes on to say their use in a hiring decision may be justified through "an additional inquiry" that determines the following:

If the employer conducts an inquiry that results in "yes" answers to the items above, the EEOC says an exclusion of an applicant based on the arrest record is justified. Circumstances that could lead SmartStart Retail to this conclusion include:

There is one additional sticking point. Before SmartStart Retail can proceed with an inquiry, the company must be aware of any laws or regulations in their state that restrict this practice. Currently, more than 20 states prohibit inquiries into arrest records, though some of these, including Idaho and Missouri, allow inquiries in cases where the employer can prove it is a business necessity.

Scenario No. 2: The record shows an arrest on a theft charge, a plea of "guilty," an acceptance of the plea by the court, and a final adjudication of guilty.

If the record shows Will I. Beworking was found guilty or convicted of the charge, SmartStart Retail has wider latitude to use the record than it would with a mere arrest. EEOC policy throws more support behind the use of conviction records in employment decisions, stating they "constitute reliable evidence that a person has engaged in the conduct alleged since the criminal justice system requires the highest degree of proof for a conviction."

However, as with arrest information, the EEOC prohibits employers from implementing a blanket policy of excluding all applicants with criminal convictions. Here again, potential race discrimination comes into play under Title VII, because statistics show a disproportionate number of certain minorities are convicted of crimes. As a result, such a blanket policy can adversely impact employment opportunities for these groups.

The EEOC establishes a clear baseline for the proper use of conviction records, permitting employers to use them to make employment decisions only in instances of "business necessity." According to EEOC policy, a business necessity can be justified if the conduct that led to the conviction is "particularly egregious or related to the position in question." Business necessity can also be established through the examination of these factors:

In our hypothetical scenario, it's possible that SmartStart Retail could establish business necessity based on the following circumstances:

The EEOC's policy on the use of conviction information applies to both felonies and misdemeanors, so long as the three factors cited above are used in the determination of whether denying employment is a business necessity. Many charges that are misdemeanors in some states, such as shoplifting, can be extremely relevant to a job in a retail environment. However, state laws can impede the use of certain misdemeanor records. In Maryland, for instance, it is unlawful for employers to inquire into a first conviction for several misdemeanors, including drunkenness, simple assault, speeding, minor traffic violations and disturbance of the peace.

In other states, employers may find additional hurdles to using conviction information. Many states have published regulatory guidance prohibiting employer inquiries into conviction records, but these same states mirror the EEOC's position that an inquiry is permissible in cases of business necessity. These states include Missouri, New Hampshire, New Jersey, Rhode Island, South Dakota and Utah.

Additional state restrictions to be aware of for use of convictions include statutes of limitations. Alaska and Ohio, for instance, prohibit inquiries into convictions that are more than 10 years old.

Scenario No. 3: The record shows an arrest, a plea of "guilty" and deferred adjudication.

If the record shows Will I. Beworking received deferred adjudication, SmartStart Retail may find itself in "legal limbo." Deferred adjudication occurs when the case is dismissed based on the defendant's compliance with certain terms set by the judge. The information is technically an arrest record, not a conviction, but Will I. Beworking still pled guilty to the crime.

Employers can typically establish stronger legal grounds for using this type of information with carefully crafted questions on the employment application. The EEOC says employers should not ask about arrests on the application, stating that certain minority applicant pools may be discouraged from applying for positions that require supplying this information. Employers can ask about convictions on the application, but this question will not yield any information about a case that resulted in deferred adjudication or other pretrial intervention.

Some employers are opting to ask applicants if they have "ever pled guilty, no contest or been convicted of a crime." This question captures a wider range of potentially relevant criminal scenarios. If the application also includes an attestation statement, in which the applicant certifies the information provided is complete and accurate, the employer could have legal grounds to deny employment if any question is answered falsely. The EEOC and the courts have supported this practice, including denial of employment based on the failure of the applicant to include information on arrests or convictions.

At the same time, some state laws may prevent this situation from arising altogether. California, for instance, does not permit the reporting of criminal cases if a conviction does not result, no matter if the subject pleads guilty or not guilty.

Scenario No. 4: The record indicates an arrest, but the case is still active, the applicant is currently awaiting a jury trial.

If Will I. Beworking is involved in an active or pending case, SmartStart Retail may again be thrown into legal limbo. In navigating the situation, one option is to ask the applicant about the details of the case, and then defer consideration of the candidate until the case is finalized.

Additional factors to consider

Some employers opt to only consider convictions, or perhaps only felony convictions, in the hiring process. These practices can potentially "screen out" criminal search information that may be extremely relevant to a hiring decision. As the EEOC says, "It is the conduct, not the arrest or conviction per se, which the employer may consider in relation to the position sought."

When employers encounter a gray area in the analysis of criminal background check results, expert advice of legal counsel is essential. For applicants like Will I. Beworking, the final hiring decision could potentially be yes ... or no.

Legal Disclaimer: This article is designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law. Persons in need of legal assistance should seek the advice of competent legal counsel. *

Stefan Keller is president of Truescreen Inc., a provider of background checks and drug screens to the retail, hospitality and security industries, as well as other top firms nationwide. Truescreen is a member of the Vertical Screen family of employment screening companies, which also includes Business Information Group and Certiphi Screening. For more information, call (888) 276-8518, ext. 2003, or visit

Date-of-Birth Data:
Critical, Yet Controversial

In the background check process, date of birth is a crucial identifier used to verify the accuracy of criminal records, obtain motor vehicle and education records, and more. However, the need for date-of-birth information is often overshadowed by employers' fear that asking for it will violate age discrimination laws.

According to the EEOC, it is not considered discriminatory to ask an applicant his or her age on an employment application. EEOC regulations specifically reference requests for "date of birth'' or "state age'' as permissible under the Age Discrimination in Employment Act (ADEA).

However, the ADEA stipulates that since such requests may discourage older applicants or point to potential discrimination, they will be "closely scrutinized to assure the request is for a permissible purpose." This purpose must be made clear to the applicant.

Some potential ways to gather date-of-birth data while protecting against the possibility of discrimination include:

Reprinted with permission of Loss Prevention Magazine.