Over the past twenty years, background checks have become increasingly powerful. The core of a good background check is information, and information everywhere has become easier to access with the rise of databases. This has been very disruptive to social policy, and governments have responded with new laws. An increasing emphasis on fairness, racial equity, and full economic access means that these rules are continuing to develop over time. Failure to understand them can be an expensive mistake.
Criminal records are created in local courthouses. An old, traditional search would go through the following steps:
- Figure out where the subject has lived, by using their social security number.
- Go to any courthouse where they had lived within the past 7 years, and look for any criminal records. Going to courthouses takes time and money, so limiting the scope of the search to 7 years kept costs down. (In some cases the client could get a 10 year search for an extra fee.)
There were limits to this type of search. It might miss crimes committed out of town. Most importantly, it meant that crimes over 7 years old tended to be forgotten. While the Fair Credit Reporting Act (FCRA) generally allows convictions to be reported indefinitely, it was cost prohibitive to search too far back for most candidates.
Background checks changed once some enterprising companies began buying court records in bulk and entering them into searchable databases. Suddenly it was very easy to find records of crimes committed 20 years ago. Minor offenses could become a permanent bar to employment. In a competitive market, people found that a mistake made decades ago prevented them from ever getting a job or renting an apartment. And legislators started to notice.
The fundamental idea behind “ban the box” is banning the checkbox on employment applications where the candidate is asked, “Have you ever been convicted of a crime?” It is just too easy to filter out applications that check the box. Laws addressing this require employers or landlords to wait until the first interview, or in some cases until a conditional job offer was made, before asking about or looking into criminal history. Ban the box laws have developed piecemeal over the United States, and they are not consistent. There are many places where rules exist at the local and state levels — and the local ones are often the most restrictive.
Some jurisdictions have taken this philosophy further, seeking to avoid any discrimination against individuals with a criminal history. A notable example would be New York City’s Correction Law, Article 23A, “Licensure and employment of persons previously convicted or one or more criminal offenses”. An employer may not discriminate against a candidate unless:
- There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
- the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
NYC does not permit background checks until a provisional job offer has been extended. A candidate with a criminal conviction who is denied a job may request a written explanation from the employer, who has 30 days to respond. Employers who violate this rule may be criminally liable with imprisonment of up to one year, and/or a fine of up to $500. Add in liability for lost wages up to $125,00, and a civil penalty of up to $250,000 for willful violations, and it is easy to see why employers are extremely wary.
Illinois may be poised to follow, with Senate Bill 1480. This bill would define use of conviction records in an employment-related decision as a civil rights violation, unless
- there is a “substantial relationship” between the criminal offense and the position, or
- it would involve an “unreasonable risk” to property or the safety of a specific individual or the general public
As with New York City, employers are guided to weigh various factors such as the length of time since the conviction and the circumstances surrounding it.
It has always been sound policy to look at the circumstances of someone’s criminal record before rejecting them on that basis. The Equal Employment Opportunity Commission (EEOC) has made this clear for many years. The compliance rules will continue to evolve. As an employer, you should always start with a comprehensive background check authorization form that includes the necessary documents for your state. And when in doubt, consult with legal counsel.
We are not lawyers and this post does not constitute legal advice. We are happy to answer general questions about our background check service.