Can HR Deny Employment Based on Criminal Records?

3 min read
Fri, Feb 05, 2021

Can HR Deny Employment Based on Criminal Records

With more states and communities passing fair chance hiring laws and ban the box legislation, hiring managers often wonder if they're able to turn away an applicant with a criminal record. Employers have put the onus on HR to protect their organizations, their property, their employees and their customers. If everyone is starting to give jobs to the formerly incarcerated, how can HR keep the company safe?

Can HR deny employment to an applicant with a criminal history?


Timing of a Criminal History Background Check

One of the first things to consider is the timing of applicant screening. Ban the Box, for example, asks employers to remove the 'criminal conviction' question from the employment application. This allows the candidate a chance to be considered for the job and removes any auto-deny discrimination from application review. Once the applicants have been interviewed and a job offer has been made, then hiring managers can obtain consent for a background check and look at criminal history. 

See also: How to Obtain Screening Consent and Authorization


Federal Policies on Criminal Hiring

The EEOC has guidance available for HR to assist with assessing criminal records. The EEOC website explains the differences between arrests and conviction records and informs hiring managers of consumer protections to follow when reviewing the records. They also recommend that a decision matrix is used to provide consistency when applying "deny-all" policies to certain jobs. 

As an example, denying employment may be necessary if the crime committed would affect the job performance. HR must still be able to prove that this job description and deny policy are being applied consistently across all hiring. A decision matrix would be used for proof and policy documentation. 

EEOC Background Screening  Decision Matrix

With the EEOC recommendation of individual assessments of criminal records, the guidance challenges employers to consider:

  • The nature and gravity of the crime
  • The time elapsed since the crime or the completion of the sentence
  • If the crime affects the nature of the job for which the applicant is being considered

A criminal background screening policy is also recommended as a best practice to protect employers from hiring discrimination claims. Creating these documents help to guide a smoother hiring process, protecting an applicant's consumer rights, fair hiring and protecting the employer at the same time. 

State Policies on Criminal Hiring

Some states have their own laws with regards to criminal hiring and criminal records, especially as they relate to the sealing or expungement of juvenile records. In general, employers can follow these protocols:

  • Do not deny employment based on arrest records unless:
    • the arrest lead to a conviction
    • the arrest took place recently
    • the alleged crime would affect the job or position
  • Criminal history cannot be considered if:
    • the record was expunged, sealed, or dismissed
    • the conviction isn't related to the responsibilities of the job
    • the nature or gravity of the crime does not affect the job
    • an extended period of time has passed since the conviction

Review state laws on to learn more.

Yes, HR Can Deny Employment Based on Criminal Records … if Assessed Correctly.

Hiring managers can create a job-related criminal background check policy and a decision matrix based on the EEOC recommended guidance to help with assessing criminal records. Instead of a blanket deny-all policy, each candidate must be individually assessed to see if they'd be great employees and if they're safe from harm for employers.

Still have questions about pre-employment criminal background checks? VeriFirst can help. Contact us with your questions or get a personalized quote.

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