Discussion of advantages/disadvantages of Using Arrest, Conviction, and Misdemeanor Information in the Hiring Process

Sometimes one of our customers request that we screen out all arrest and misdemeanor information from the criminal records they receive.

We believe that screening out such information has both advantages and dangers for our clients.

Advantages of screening out arrest and misdemeanor information:

  • Sometimes the information which we provide is used by managers who do not have extensive human resources training.
  • By precluding these managers from seeing arrest and misdemeanor records, corporations ensure that those managers will not use the information improperly.
  • The corporation is then safeguarded from the risk of a discrimination suits which could result from the inappropriate use of those records.

Dangers of screening out arrest and misdemeanor information:

Following are two hypothetical examples demonstrating scenarios which could occur if a hotel screens out arrest and misdemeanor information:

  • The dealership interviewed the applicant and did a criminal background check. Although she had a history of shoplifting and other small dollar thefts, this information was screened out of the reports to the dealership because all of the convictions were misdemeanors. Later the dealer was forced to terminate her when she was caught stealing from customer's cars. The dealer lost several regular customers because of the incident.
  • John applied for a job as a maintenance person at the dealership. He had been arrested twice for child molestation but was not convicted either time because the parents of the alleged victims refused to allow their children to testify, saying that they had “suffered enough.”

    Because the dealer had directed that arrest information be screened from the criminal records they ordered, they hired John without being aware of the past allegations against him.

    John later was convicted of using key he obtained to enter an employee's home and molest a 12 year old girl who had been left there by her parents.

    The judge in the case ruled that there was no law prohibiting the dealership from using arrest information in the hiring process and that the dealer did have a duty to protect the safety of its customers by making a reasonable inquiry into the background of those who could have access to a variety of keys. The jury awarded a multi-million dollar judgment against the employer.

In light of the fact that the EEOC does not prohibit the use of arrest and misdemeanor information in the hiring process, employers must weigh the possible discrimination suits which could be brought against them for misusing the information against the possible consequences of refusing to consider the information.

Background of the EEOC’s Position

The EEOC states that if a hiring standard disqualifies a disproportionate number of minority applicants from employment, then an employer must prove that there is a business necessity for using that standard.

Because minorities are both arrested and convicted more often than the general public, businesses are in danger of being charged with discrimination if they do not follow the EEOC guidelines for the use of this information.

The EEOC states that it is permissible to use arrest information in the hiring process.

“…an arrest record may be used as evidence of conduct upon which an employer makes an employment decision.

An employer may deny employment opportunities to persons based on any prior conduct which indicates that they would be unfit for the position in question, whether that conduct is evidenced by an arrest, conviction or other information provided to the employer.

It is the conduct, not the arrest or conviction per se,which the employer may consider in relation to the position sought.” (EEOC Policy Statement, N-915.061, II.B.2., September 7, 1990, underlining added)

What is forbidden by the EEOC is a blanket policy barring employment to those who have been arrested for a crime. “An arrest record does no more than raise a suspicion that an applicant may have engaged in a particular type of conduct.” ( Ibid., II.B.3.)

When confronted with information about the applicant’s previous arrest record, the EEOC directs employers to:

  1. “…determine whether the applicant is likely to have committed the conduct alleged.” (Ibid.)
  2. Consider “…the nature and gravity of the offense.” (Ibid., II.B.2.)
  3. Consider “…the time that has passed since the…arrest.” (Ibid.), and
  4. Consider “…the nature of the job held or sought.” (Ibid.)

The material below provides a more detailed explanation of these four obligations.

  1. Determine whether the applicant is likely to have committed the alleged conduct.

    The first requirement is the most difficult. The EEOC states that an employer “…must determine whether the applicant is likely to have committed the conduct alleged. …An employer need not conduct an informal ‘trial’ or an extensive investigation to determine an applicant’s or employee’s guilt or innocence.

    However, the employer may not perfunctorily ‘allow the person an opportunity to explain’ and ignore the explanation where the person’s claims could easily be verified by a phone call, i.e., to a previous employer or a police department.

    The employer is required to allow the person a meaningful opportunity to explain the circumstances of the arrest(s) and to make a reasonable effort to determine whether the explanation is credible before eliminating him/her from employment opportunities.”

    Pages 6-8 of the attached EEOC Policy Statement provide excellent examples of what the EEOC believes to be reasonable in this area.

    Obviously it will be very helpful to have this step handled by someone with experience in human resources.

  2. Consider the nature and gravity of the offense or offenses.

    Failure to pay cab fare is a misdemeanor in some states. So is parking where temporary “No Parking” signs have been posted. But are they grave enough offenses to warrant rejecting someone for a job? The EEOC asks employers to consider the nature and gravity of an offense rather than adopting a policy which rejects all applicants who have even an insignificant criminal record.

  3. Consider the time that has passed since the arrest.

    The EEOC Policy Statement does not provide guidance on when an alleged action is too old to be considered relevant.

    Most employers would feel that a charge of murder or rape would stay relevant much longer than a charge for the possession of a small amount of marijuana. It should be mentioned that the Fair Credit Reporting Act prohibits consumer reporting agencies from reporting on criminal histories which are over seven years old unless the applicant makes over $75,000 a year. (Unless specifically requested to do otherwise, we limit all of our inquires to the last seven years.)

  4. Consider the nature of the job held or sought.

    An arrest or conviction for a DUI may not be relevant information for a job as a mail clerk where there are no driving responsibilities. A conviction for unemployment benefit fraud may not be relevant information for a job as a bus driver.

    On the other hand, even misdemeanor theft charges would be relevant for a job as a parts cashier where the applicant would have easy access to customers information and property.

  5. Asking About Arrest Information in the Hiring Process

    The EEOC has stated that asking applicants about arrests which have not lead to convictions may have a “chilling effect” upon minorities and discourage them from applying for a job. In addition, some states prohibit employers from asking about arrest information. (See following information about state laws.) For these reasons many employers ask applicants to disclose convictions but not arrests on their job application. They rely on the actual criminal history records they obtain to inform them about arrests which have not led to a conviction.

    Using Conviction Information in the Hiring Process

    The EEOC states that employers generally may not have a policy excluding all applicants who have been convicted of a crime, even if the crime was a felony.

    If there is a conviction, the employer may presume that the applicant did commit the alleged conduct and is not required to make further investigation. This is the only way in which the treatment of a conviction in the hiring process is different from the treatment of an arrest.

    The employer must still:

    1. Consider “…the nature and gravity of the offense.” (Ibid., II.B.2.)
    2. Consider “...the time that has passed since the conviction.” (Ibid.), and
    3. Consider “...the nature of the job held or sought.” (Ibid.)

    To comply with the EEOC policy statement, employers should establish guidelines which reflect reasonable background standards for the job. For instances, a dealer hiring for positions which allow access to customers private information might exclude applicants with a felony conviction in the last seven years.

    Some employers also allow an appeal to the home office human resources department for exceptional cases.

    Using Misdemeanor Information in the Hiring Process

    The EEOC does not prohibit the use of misdemeanor information in the hiring process.

    As described above, the EEOC does require that employers consider the nature and gravity of an arrest or conviction.

    Employers should not, therefore, automatically exclude all employees who have a misdemeanor on their record.

    On the other hand, some misdemeanor charges can be highly relevant to hiring decisions.

    Possession of hard drugs or even marijuana, shoplifting, and domestic violence are all considered to be misdemeanors in some states.

    That does not mean that employers cannot consider this information in the hiring process.

    Helping the Manager Comply with EEOC Guidelines

    Some corporations take these steps to assist their local managers to apply the EEOC guidelines:

    1. Provide reasonable and clear guidelines on what is an unsatisfactory criminal history for a given position.
    2. Refer hiring decisions involving arrest information to a senior human resources person or HR consultant such as Seay management who has the experience and knowledge to do the type of investigation required by the EEOC.