The start of a new year, whether it’s a calendar year or a fiscal year, offers a natural opportunity to review your hiring practices and policies.
But the fact remains that you should never wait to implement a best practice, particularly when it’s one that ensures that you treat all applicants and employees fairly.
Conducting a background investigation on each job applicant is widely regarded as a best practice. If you do so, you must also be prepared to follow state and federal guidelines for how you use the information revealed in such a report.
For example, if you conduct a background check on an applicant and decide not to move forward with the candidate based on information found in the report, New York State requires you to document the reasons behind your decision.
The State’s requirements are defined in Section 752 of Article 23-A which was enacted to prevent unfair discrimination against persons previously convicted of one or more criminal offenses.
The intent behind the law lies in the belief that employment can be an effective means to stopping criminal recidivism. The State wants to keep companies from automatically rejecting job candidates based solely on their criminal histories.
Employers Next Steps
Of course, certain criminal convictions – e.g., a DUI for a job applicant seeking to become a truck driver – can create undue risk for an employer, so the state does offer two notable exceptions to Article 23-A when …
(1) There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
(2) The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
While Article 23-A is a state law, it is largely mirrored by the U.S. Equal Employment Opportunity Commission’s (EEOC’s) guidance on this subject which states that “any background information you receive from any source must not be used to discriminate in violation of federal law.”
The EEOC further clarifies its guidance with the following example:
If you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
Given the state and federal positions on this issue, it is critical that companies adopt consistency in their approaches to hiring/not hiring individuals with criminal records, or other adverse information, AND document their actions accordingly.
To assist employers with this process, we have created the Individualized Assessment Decision Matrix™ that any company can use, even if they do not retain our services for their background investigations.
