When can HR use criminal records in the hiring process?

Author: Jessica Sussman

The EEOC has suggested that an adverse action based on a criminal conviction is improper unless the conviction is relevant to the job, or there is another legitimate business reason. The EEOC has found that disqualifying applicants based only on their criminal record may have a disparate impact on certain racial and ethnic groups. For this reason, employers should perform thorough investigations and weigh the nature and severity of the offense, as well as when it occurred, before basing any adverse employment decision solely on a criminal record.

Employers may be required, however, to check criminal convictions for applicants seeking jobs working directly with minors or the elderly. While employers must get the applicant's written consent in order to run a criminal background check, they are not obligated to consider an applicant who declines the request. Since state laws vary widely, employers should check with their state Department of Labor before securing criminal record information.