Can a business weed out convicted felons when hiring?

Posted by Edward Sharkey on Thu, 10/22/2015 - 15:33

We frequently post about the EEOC’s campaign against employers who use criminal background checks during hiring. Apple recently came in for national criticism for their policy prohibiting convicted felons from working on the construction of the company’s new 2.8 million square foot campus. Prior felony convictions cost several construction workers their jobs on the project. Is there a prohibition against weeding convicted felons out of your hiring pool?

The EEOC has issued guidelines providing that any exclusionary practice that is not job-related and consistent with business necessity may be against the law.

This broad language leaves a lot of room for interpretation. The EEOC gives an example, but it simplifies an issue that often is more complex in the real world. In the example, the EEOC concedes that it is okay to exclude a convicted sex-offender from a job at a pre-school. That strikes us as an easy case. What about hiring a convicted batterer for a landscape crew? Or hiring a tax cheat for the cash register?

The EEOC provides recommendations for crafting a compliant policy. The recommendations assume the availability of resources to manage compliance with what is only one of the many government requirements that businesses face. Among other things, employers should:

1. Develop a clear written policy and procedure for screening and interviewing potential employees with criminal records;

2. Identify the actual job requirements of all company positions and justify why specific criminal convictions demonstrate unfitness for each position;

3. Include an individualized assessment as a part of the screening procedure, taking into consideration any potential mitigating circumstances surrounding the applicant’s conviction; and

4. Maintain a record of all research done in crafting your company policy in an effort to demonstrate due diligence.

If you have a multi-person HR office, this will be a nice project for them. If you don't, you must manage on your own, trying to cobble together a solution that accounts for your interest in being fair, your responsibility to your customers and other employees, and the risk that your government will make an example of you.

In that case, ask yourself whether six people randomly selected from the voting roles would agree that a criminal conviction matters in the context of the specific job you are offering. If you think they would, you can consider not hiring the person. I would probably check with a capable employment lawyer to discuss it. And don't ignore separate reasons why. A candidate who has a felony conviction may not be suited to you for different reasons. You do not need to hire an unsuitable prospect because he has a conviction. And you do not have to justify not hiring a prospect based on a conviction if it is really other things.

Call Today (301) 657-8184

 Google+  View Edward Sharkey's profile on LinkedIn