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by Vault Careers | March 10, 2009

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Increasingly HR managers know that prospective employees must be checked out before they are put on the payroll. When it comes to criminal records, however, special cautions apply. If for example, you hire a person who was convicted of assaulting or raping someone on the job, you could be held negligent if that employee then harms one of your employees. Many positions are especially sensitive, such as child care workers, security guards, workers in the securities industries, etc.

But there are plenty of pitfalls that await the overzealous investigator. You could open yourself up to allegations of invasion of privacy or even discrimination charges if you dig beyond what is considered reasonable. For example, an arrest is not evidence of criminal guilt; it should not be used as the sole reason for rejection.

Another problem is what happens when you discover someone has a criminal past after you've already hired the person -- a condition which would have barred them from doing their current job. A real-life example is the case of a mother who was a model school bus driver; her employer faced quite a dilemma when her long-ago drug conviction as a teenager came to light.

There is no comprehensive Federal law that regulates an employer's investigation or use of individual arrest and/or criminal conviction records. Here are some guidelines to follow before making any negative employment decision based on an applicant's or employee's criminal record:

  • The length of time since a conviction
  • The nature of the crime
  • The relationship between the job to be performed and the record of conviction
  • The number of convictions
  • Rehabilitation efforts
  • Subsequent employment history

Note that Federal law requires that a criminal background check be conducted on child care workers. State laws may also govern certain occupations so you should check state laws as well.

Many other types of employment investigations are routinely made by employers, including reference and credit checks. Here are some things to consider:

  • Ask applicants to sign a release permitting you to access this information
  • Keep your investigation confidential
  • Only investigate after a job offer has been made
  • Don't overreach in your investigation. Research a candidate's background only when there is a legitimate need to know that is closely related to the job function.

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Filed Under: Workplace Issues
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