A criminal records check should be performed on any new hire because last year over 6 million people in the U.S. were in jail, prison, on parole or on probation and a large portion of the crimes committed are by repeat offenders. Performing a criminal records check should be seriously considered when you have doubt about someone’s past. Keep in mind you or your company could be held liable if someone you employ commits a crime on the job and it is found they had a criminal record which you failed to research.

Checking criminal records is a sensitive issue but in order to protect your business from liability it is best to conduct a criminal record check on applicants who:

  • be bonded because of access to money or valuables
  • carry a weapon
  • drive a company vehicle
  • will have access to drugs or explosives
  • have access to master keys
  • will have a lot of contact with the public, patients, or children
  • be filling a position that requires a criminal record check under state law

Restrictions on Criminal Records Check

There are two types of law that regulate the use of criminal record checks.

Federal Civil Rights Law. Asking applicants to disclose their criminal records may violate their civil rights. Before asking about them, ask yourself:

  • Is there an adverse impact on minority applicants?
  • If there is an adverse impact, is the record check related to the performance of the job or some other business necessity?
  • If there is a business necessity, is there another way to investigate the applicant’s background to get around the adverse impact?

State law. Some states restrict checks of criminal records to those employers who are checking for specified reasons. Some states even prosecute employers that violate laws preventing criminal record disclosure. On the other hand, most states prohibit people convicted of certain crimes from holding certain occupations, such as home health worker, daycare worker, teacher, etc.

Checking Conviction Records

We recommend that you check conviction records only if you need to do so to protect your business from negligent hiring claims. Whether you are justified in requesting a criminal record check can be determined from:

  • the type of position being filled
  • the information that you had obtained from the applicant, former employers, personal references, and educational references before you started a criminal record search
  • the ability of your business to bear the cost of the search

Where do you check? The easiest way to check conviction records is to have a private detective agency do it for you. You can also do it by communicating directly with:

  • the state’s central repository of records
  • state and local criminal agencies
  • any county in which the applicant may have been living
  • the state’s department of motor vehicles for records of driving-related convictions and violations
  • the Federal Bureau of Investigation

Legal considerations. Because conviction records can cover an array of behavior and can sometimes unfairly affect certain groups of people, be sure to:

  • comply with anti-discrimination laws, both federal (if you have 15 or more employees) and state
  • avoid violating state laws that restrict use and disclosure of criminal records or that require you to check conviction records based on the nature of your industry or the type of position you are filling

Checking Arrest Records

Routine checking of arrest records isn’t permitted. An arrest record alone is not proof that an applicant committed a crime.

In the event that you are permitted to check arrest records, in order to deny employment on the basis of an arrest record, you must:

  • consider the relationship of the arrest charge to the position applied for
  • determine the likelihood that the applicant actually committed the conduct alleged in the arrest

If the arrest is related to the position, you must still:

  • look at surrounding circumstances
  • offer the applicant the chance to explain
  • make follow-up inquiries to evaluate the applicant’s credibility

Generally, applicants do not even have to disclose any information concerning arrest or criminal charges that did not result in conviction.

A number of states have laws that grant applicants and employees certain protections against criminal disclosure based on privacy concerns.