Checklist for 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?

Step 2: Develop a process for conducting criminal background checks.

• 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)?

• Before using information obtained in the criminal background check to make an employment decision, have the following criteria been met?

  • 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?

Source:Employer's Guide to Workplace Privacy, Amy L. Greenspan, Aspen Publishers.