Understandably, for many employers, a candidate’s criminal history or criminal record is a matter of both interest and potential concern in the hiring process.  While sometimes valuable in making a hiring decision, considering a candidate’s criminal record is is fraught with legal risk.  

Luckily, the Equal Employment Opportunity Commission (EEOC) has provided guidance that can help small businesses steer clear of any appearance of discrimination.   

Below is a list of the top pitfalls to avoid when asking about criminal history in the hiring process, and suggestions to get the information you need while remaining compliant with the law.

(This article is not legal advice.  Please consult legal counsel on lawful hiring practices.)

Avoid 3 Common Pitfalls of Considering Criminal Records when Hiring

If it’s important to the position, you can ask if an applicant has ever been convicted of a crime during the interview.

But don’t ask about a criminal record on the application.

Asking for criminal history on an application can appear as if applicants may be eliminated before the company has a full picture of the candidate. Some states have even banned requesting criminal history on the application outright. Even when it is not illegal, the EEOC advises evaluating criminal history as only one factor of an applicant’s fit for the position.

You can run a background check only after making an offer and according to a written company policy.

But don’t run a background check prior to making an offer.

Running a background check prior to the offer stage can be interpreted as discrimination based on an applicant’s race, ethnicity, or other protected class, and it can be very difficult for a company to prove otherwise in a discrimination lawsuit. Create a written company policy that outlines under what conditions you will run a background check and at what stage of the hiring process. This approach will help you avoid the appearance of discrimination while staying true to your hiring standards.

You can evaluate the criminal record of each candidate within the larger context of ability to perform the job.

But don’t set a predetermined hard and fast policy that eliminates candidates with adverse criminal history.

Although a hard and fast policy may appear to make the process fair and objective, the EEOC has advised against this as it may eliminate candidates for reasons that have no relation to their ability to perform the job. The EEOC advises that employers should instead consider the circumstances and context of the crime and the likelihood that criminal history may be an indicator of the applicant’s ability to add value to the team and the position.

You can download a printable PDF version of this guide to share with your team.

And once you’ve found that perfect employee, be sure to use Homebase for employee scheduling, timesheets, and hiring tools.


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