AccuSource Blog

What to do if you uncover criminal history during the background check process

Job inderview failureAs pre-employment background check procedures continue to exist as a large part of the hiring process, there are instances where an employer will find that the applicant has a criminal history.

Handling this sensitive manner in a professional way is key.

What is a criminal history check?

A criminal history check pulls all the skeletons out of the closet, and can go back a specific number of years. When employers conduct these type of background checks, they are looking for major crimes and other felony convictions.

It is important to note that pre-employment background checks do not include arrest reports.

If a criminal history check uncovers some information, there are specific procedures to follow. The EEOC has very strict guidelines on handling situations where a criminal background check has revealed a past that may interfere in the hiring decision.

Here is what must take place:

  • The applicant must be informed that the information gathered may be used to make the final hiring decision. The notice must be in writing in a stand-alone format.
  • If taking adverse action by not hiring the candidate, the information revealed in the background check must be provided to the applicant. As an employer, you must tell the applicant why they were rejected; the name, address and phone number of the company where the report was retrieved; the company providing the report did not make the hiring decision; and they have a right to dispute the accuracy of the report within 60 days.

Properly disposing of information found in a criminal history check is just as important as the initial process. All records must be preserved for one year after the records were obtained, or after a personnel action.

For educational and governmental agencies, the records must be kept for two years.

Handling this situation professionally is key. Although someone’s criminal history may come up, if it does not directly interfere with the duties of the job, or it has been over a certain period of time, the company may face interference by the EEOC if an applicant feels as if they have been treated unfairly.

There are a number of laws in place that provide protections in this area.

Additional actions to take when a criminal history is revealed;

  • Carefully review the report to determine if it is indeed the applicant.
  • Check to see whether or not the information was already disclosed on the application.
  • Send a Pre-Adverse Action Notice to the applicant to give them time to review and dispute the report if necessary.
  • Wait at least 5 to 10 business days after sending the Pre-Adverse Action Notice before sending a final Adverse Action Notice.
  • If the report has an error, the applicant must show proof that the report was corrected and provide a new report.

There are a number of mistakes that can happen when background checks are performed. It is up to you as an employer to know and understand applicant rights. Working with a company that does their due diligence in ensuring the right report has been provided is key.

Employers come across many applicants with criminal histories. Following a strict process to make sure your procedures are within federal guidelines can make a huge difference when hiring. Having your staff trained on the EEOC guidelines and what can and cannot be done is a must to protect your organization, and the rights of the candidate.



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