How and when should criminal background checks be made?

Before an employer decides to make inquiries concerning applicants' or employees' criminal records, there should be a careful review of federal and state law, including the status of employee privacy protections.

Industry or job-specific requirements. Certain types of employers may be required to check criminal records under federal or state law. Highly regulated industries such as health care, financial services, law enforcement, and education are a few of the industries that have industry-specific background checking requirements. Many of these are found in state law; check State Laws for the details for each state.

Federal civil rights law. Employers should be aware that federal civil rights laws may be violated by asking applicants to disclose their criminal records. On the theory that in some areas minorities are more likely to be arrested and questioned about criminal activity, a practice of asking about criminal records might affect the employment of minorities.

Before asking about criminal records, employers should determine:

• is there an adverse impact on minority persons;

• if an adverse effect exists, is the absence of a criminal record necessarily related to job performance or warranted by some other business necessity; and

• if a business necessity exists, is there an alternative with a lesser adverse impact?

• An employment practice that adversely impacts minorities without some business necessity for the practice is regarded a violation of Title VII.

State law concerns with criminal record checks. State laws vary greatly on whether or not employers may make criminal record inquires and, if so, how those inquiries may be made. For example:

• Some state laws require employers to conduct criminal record inquiries before employing new employees. These laws most often apply to prison staff, law enforcement, security, public schools, health care workers or day care centers.

• In some states, it is prohibited for employers, employment agencies or labor organizations to inquire on a written application whether a job applicant has ever been arrested or to use arrest information or criminal history record information ordered expunged, sealed or impounded as a basis for denying employment or promotion.

• Many states have laws on the books granting employees certain protections regarding criminal record disclosure. While protections vary from state to state, prospective employees generally do not have to disclose any information concerning an arrest, a criminal charge that did not result in a conviction or any information about convictions which have been pardoned by a governor or in some other manner protected by the courts.

• Where authorized by state law, most states require that applicants be advised that a criminal records check will be done. There may be posting requirements advising prospective applicants that criminal record checks will be conducted. There may also be appeal rights for prospective employees denied employment on the basis of a criminal records check. One of most common forms of criminal record check authorized is one based on fingerprints.

• Some states will take legal action against employers who violate the law, including imposing fines for damages and costs.

Information derived from consumer reports. Consumer reports are often the result of criminal background checks. Because of the sensitive nature of information derived from consumer reports, the Federal Trade Commission adopted a rule requiring reasonable disposal methods to protect against unauthorized access to or use of such information. See the discussion at ¶11,680 .