Since 9/11 , criminal background checks, which were once reserved for public job applicants, have become standard. These background checks are used for employees at every level. Considering that we live in a country with unemployment at 9.1% and where the US Department of Justice reports that 30% of all adults have a criminal record, it is no surprise that the practice of background checks is scrutinized. The question of the legality of criminal background checks by employers is.an important issue.
The truth is that almost all information regarding one’s criminal background, from misdemeanors and DWI’s to divorce details, are matters of public record and are accessible to everyone, including potential employers. By law, these records are kept for various lengths of time, ranging from seven to ten years. There are some lines of work for which employers are obliged by law to perform background checks. This is especially true for employees working with children or the disabled. In cases where employers are authorized to run background checks, they are not authorized to share the information with any other sources.
According to the current U.S. Equal Employment Opportunity Commission (EEOC) guidelines, there are several restrictions in place which forbid the use of criminal background checks as a reason for not hiring potential employees. For candidates convicted of a crime, the background check can only be used against the applicant if the crime is relevant to the position the employee is applying. For instance, it would be completely reasonable to deny employment to a job applicant convicted of embezzlement if that person is applying for a job in financial sector. But, if the same person is trying to get a job as warehouse worker, then his conviction should not be taken into consideration. Currently, there are several class action suits against employers who do not follow EEOC guidelines. A blanket policy of not hiring anyone with a felony conviction .can result in a lawsuit.
Even if an employer is legally allowed to bar a candidate with a criminal past, he or she must be given the opportunity to explain the background report before a final decision is made. This policy reduces the risk of errors , like misclassification of misdemeanors as a felony or mistaken identity. Furthermore, some parts of the country have even stricter laws. New York, Massachusetts, Pennsylvania and Hawaii have the strictest laws regarding background checks.. In Philadelphia, any inquiry regarding candidates’ criminal background must be delayed until after the decision has been made about employment. This policy allows ex-convicts the opportunity to find jobs more easily.
Sources:
http://www.nilanjohnson.com/news/are-employer-criminal-background-checks-illegal/
http://www.employerschoiceonline.com/articles/landlord-criminal-screening-illegal.html
http://www.justice.gov/olp/pdf/employmentstdssumary.pdf
