Image Source: http://hrwatchdog.calchamber.com/2016/02/california-proposes-regulations-on-use-of-criminal-history-in-employment-decisions/
About half (48 percent) of employers that
conduct pre-employment background checks still have a question on their
application forms inquiring about applicants’ criminal histories, despite the
growing momentum to “ban the box” on job applications.
Criminal records searches are used by 93
percent of employers that conduct prehire screening. But only 10 percent of
employers wait until after making a job offer to ask about criminal history,
according to Sterling Talent Solutions’ 2017 Background Screening Trends & Best Practices
Report. The 2017 survey was
based on the responses of 507 employers that conduct background checks.
Sterling Talent Solutions is a global background screening and onboarding firm
headquartered in New York City.
More than half of respondents (55 percent)
either direct candidates to check a box on the employment application if they
have been convicted of a crime or ask about criminal history during the
interview stage. Another 28 percent do not ask candidates about prior criminal
history at all. In 2015, three-fourths of respondents said that their job
applications included a question about a candidate’s prior criminal history.
“I’m not surprised that half of employers
still inquire early on—a vast majority of employers have been asking the
question on the initial job application for quite some time, so in many cases,
it’s simply a legacy question that they haven’t yet removed,” said Clare
Hart, CEO of Sterling Talent Solutions. She added that there are also
organizations in regulated industries such as health care, transportation or
financial services that need to know upfront whether potential candidates have
certain convictions that would preclude them from being hired.
“It’s important to note that ban the box
is not a national directive, but a local or state directive,” she said. “In a number of cases,
those who have not been explicitly told they can’t include the box, continue to
When respondents were asked what they thought
about ban-the-box laws:
- 36 percent stated that they only delay information that
an employer learns anyway.
- 29 percent said the laws are fair to candidates.
- 24 percent said they are unreasonable for employers.
- 22 percent said they are reasonable for employers.
- 22 percent said ban-the-box laws are confusing.
The Equal Employment Opportunity Commission’s
(EEOC’s) guidance in 2012 suggested employers remove this question from job
applications, Hart said. Employers can expect to see more jurisdictions adopt
ban-the-box measures, she added.
The survey also revealed:
- The majority of employers (59 percent) disqualify 5
percent or fewer applicants based on past criminal convictions.
- 14 percent of employers eliminate 20 percent or more
applicants with criminal histories from consideration.
- A majority (67 percent) would proceed with a candidate
evaluation after finding a conviction not divulged initially on an
employment application, with most saying that they would give a candidate
the opportunity to explain the record.
What HR Should Do
Asking for criminal history information on an application is no
longer a best practice for most employers, said Brian Monahan, co-founder of
Redwood City, Calif.-based GoodHire, an employment screening firm making a
splash in the industry for its unconventional approach to what it calls “humanizing”
“Not only could it be unlawful to ask,
with roughly 180 jurisdictions now having ban-the-box laws in effect, but savvy
employers understand that proactively moving the inquiry to later in the hiring
process both aligns with EEOC guidance and can save time and money later, when
a new ban-the-box law is passed in the employer’s jurisdiction,” he said.
Criminal history inquiries still provide
significant benefits to employers, which even ban-the-box laws acknowledge,
Monahan said. “Criminal inquiries can help employers minimize the risk of
negligent hiring claims and help provide a safe work environment.”
However, “waiting to inquire until after evaluating the candidate keeps
more candidates in the pipeline, a plus in tight labor markets.”
A good time for a background check is after a
conditional offer has been made, he said. “This approach aligns with the
requirements of most ban-the-box laws and gives employers the chance to perform
the EEOC’s recommended targeted screen and individualized assessment, which
provide more-complete information for informed hiring decisions.”
When determining whether or not to hire a
candidate who has a criminal conviction, follow a clear, consistent policy to
fairly evaluate all candidates. Look at the specific requirements of the role
and determine if the conviction is relevant to the job.
“The full set of evaluative tools, such
as individualized assessment and targeted screens, should be used to determine
whether the candidate’s convictions actually relate to the position sought
and/or create an unreasonable risk,” Monahan said.
Use of Individualized Assessments
When a conviction comes up, not all companies
respond the same way. A majority of employers (57 percent) perform an
individualized assessment as recommended in the EEOC guidance, while 18 percent
do not, and 25 percent of companies do not know whether or not they perform an
The assessment process evaluates the important
factors surrounding a conviction including, but not limited to, the type or
severity of a crime, how long ago it occurred, the relationship of the crime to
the job held or sought, whether the person is a repeat offender, and other
factors. It encourages employers to allow a candidate to give reasons for why
that record should not be considered. Employers should consult with their legal
counsel concerning compliance with EEOC guidance on the use of criminal
history, and the specific factors to consider in the individualized assessment
“We believe that giving candidates a
chance to explain what happened and the steps they’ve taken since humanizes the
person behind the record and helps build relationships based on mutual trust,
fairness and respect,” Monahan said.
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