As an employer, you know that the process of screening and hiring new applicants comes with a significant level of responsibility. You want to make the best possible decisions, ensuring that new hires will be able to safely and reliably perform the duties of the job and fit well into your overall company culture. You are tasked with the need to conduct a thorough screening process while also carefully avoiding any real or perceived violations of state and Federal anti-discrimination laws.
Under Florida law, employers who conduct criminal background checks as part of their hiring process are protected from a liability known as negligent hiring. Employers who wish to take advantage of this incentive need to be familiar with the employee protections that are outlined in the Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964. Creating and implementing detailed policies and procedures related to the hiring process can help to protect both you and your potential employees from the impact of potential violations.
Understanding Federal Guidelines Under the Fair Credit Reporting Act, the following steps must be followed by employers requesting a criminal record report:
* Prior written consent must be provided by the applicant.
* Applicant must be notified that he or she can be disqualified based on the results of the report
* A copy of the report must be provided to the applicant
* The applicant must be made aware of the employer’s decision
* If the applicant disputes the accuracy of the report, the reporting agency must conduct an investigation.
* If the investigation determines that anything has been reported incorrectly, an updated report must be provided to the applicant and to any party who received the erroneous report.
Title VII of the Civil Rights Act of 1964 addresses employment discrimination on a larger scale, stating that it is illegal to discriminate against anyone based on, among other things, their or her national origin, race, sex, age, color, or religion. This includes decisions that are made during the initial screening and hiring process.
Evaluating Criminal Records It is important to note that there is a difference between arrest records and conviction records. An individual who has been arrested has not necessarily committed a crime. Employers need to ensure that they are ordering only records of criminal convictions and that these records are obtained from a reputable source. The Equal Employment Opportunity Commission (EEOC) states that eliminating all applicants with any type of criminal record can be considered discriminatory. Employers should determine the types of criminal offenses that are considered to be grounds for disqualification and ensure that these standards are applied equally to all employees and candidates. Other considerations include the severity of the offense, the time that has passed since it occurred, the level of supervision, the amount of interaction with other people, and the location where the job will be performed.
When a criminal record has been noted, the applicant should be given the opportunity to elaborate on the situation, explain any extenuating circumstances, and provide additional information that may influence your final decision.
Avoiding Discrimination Issues All employees and candidates for employment must be subject to the same screening and hiring procedures. The requirement for criminal background checks may not be selectively applied and employers must be careful not to treat people with similar criminal records differently.
Before deciding to require background checks for a specific position, you should determine whether the information obtained can reasonably be used to determine the candidate’s likelihood to be a safe, responsible, and reliable employee.
For additional information on criminal background and credit checks, or any other employment matter, please see our website at: www.danzlaw.net.