Checklist: Criminal Background Checks

What steps should an employer follow before conducting a criminal background check?

The following checklist addresses issues that employers should consider and steps to take before looking into the criminal history of prospective employees:

Step 1: Determine whether a criminal background check is necessary.

• Is the employer subject to state, federal, or local regulations that require criminal background checks?
• Is the employer subject to state, federal, or local laws that limit criminal background checks?
• Does the position the applicant is seeking involve:
  • contact with the public?
  • working with vulnerable individuals?
  • handling money?
  • use of a dangerous instrument?
  • work involving the public trust?
  • driving?
• Is a union involved? (A collective bargaining agreement may limit the use of criminal background checks.)
• Does a policy of conducting criminal background checks have the potential of discouraging qualified applicants or disproportionately affecting protected minority groups?

• Are applicants informed in writing that a criminal backround check will be conducted?
• Are applicants asked to sign a consent or release in connection with criminal background checks?
• Are applicants informed that a record of conviction will not necessarily result in denial of employment?
• Has the person who will conduct the check been trained as to the proper agency to contact, fees to be paid, etc.?

Step 3: Implement the criminal background check process.

In conducting the criminal background check, have the following criteria been met?

• Have notice and consent requirements been met?
• Is the check being conducted in connection with a position for which a criminal history check is appropriate?
• If the employer is covered by federal or state laws that require or limit criminal history checks, is the check being conducted in compliance with those laws?
• Is the process being conducted in a nondiscriminatroy way (i.e., is the same procedure followed for all applicants for a given job or class of jobs)?

• If arrest records are considered, has the employer examined the surrounding circumstances and given the applicant an opportunity to explain the arrest?
• If it appears that the applicant engaged in the conduct for which he or she was arrested, is that conduct recent and job-related?
• If conviction records are considered, does the number, nature and recentness of the convictions indicate that the applicant is unsuitable for the position?
• Can a "business necessity" for making the employment decision based on the conviction records be shown?
• Is there information indicating that the individual has been rehabilitated?
  • Is the information obtained in the criminal background check treated as confidential?
  • Is the information obtained in the criminal background check disclosed only on a need-to-know basis?