Criminal background checks are very prevalent, with 80% of employers reporting the use of criminal background checks, says Ossai Miazad, partner and co-chair of the Discrimination and Retaliation Practice Group of Outten and Golden, in New York. She says it's imperative the information is correct, that the reporting agencies are held accountable and applicants must understand what their rights are. As these background checks run across many industries, it's very widespread, adds Miazad.
By and large, employers are choosing to do the background checks on their own, Miazad says, with certain industries requiring them, such as childcare, caring for the elderly, federal employment and the financial industry.
According to Miazad, employers are not prohibited from using background checks from making hiring decisions but that said, there are federal and local regulations that restrict the ways in which they're used. Employers need to make sure the information they're receiving is reliable and they must consider other factors, such as any evidence of rehabilitation.
African Americans and Latinos have the unfortunate reality that they're disproportionately impacted by the criminal justice system in the U.S., as they're more likely to face arrest and convictions. As a result, Miazad says that the EEOC has issued regulations to give employers guidance on how they should administer their screens. An individualized review of each applicant is required and blanket prohibitions are violations of Title 7 because they don't allow for individual review, she adds.
Employers can use credit reporting agencies to get their information and some ask the question on an employment applications. Miazad says that an applicant should assume that if the question is being asked on the application, the employer is very likely to run a criminal background check irrespective of of what the answer is to the question.
Certain steps need to be taken by the employer following the criminal background screening, to include providing the report to the applicant or employee and enough time needs to be given to correct any mistakes.
Ossai Miazad is partner and co-chair of the Discrimination and Retaliation Practice Group of Outten and Golden, in New York. For more information about her, click here. She spoke with The Employment Law Channel, providing online, on-demand employment law video content.