Due to growing concerns about employee violence, theft and other criminal conduct, more employers are using criminal background checks to screen potentially problematic job applicants. Some employers, like those in child care, are required by law to screen applicants for certain crimes. Others do so voluntarily to improve the quality of their workforce.
Highly publicized tragedies, such as the death of seven Xerox employees by a co-worker in Honolulu in November 1999, have heightened concern about a safe workplace. The National Institute for Occupational Safety and Health (NIOSH) estimates an average of twenty workers are murdered at work each week and another 18,000 are assaulted. While criminal background checks can be useful tools to filter potential troublemakers, employers must tread cautiously, as many states limit how such checks may be used.
Limits to Use of Criminal History for Hiring
In Pennsylvania, the use of criminal background checks in making hiring decisions is governed by 18 Pa.C.S. §9125, part of the Criminal History Record Information Act, 18 Pa.C.S. $9101-9181. Section 9125 permits employers to consider an applicant's felony and misdemeanor convictions - not mere arrests- in connection with hiring decisions. Significantly, however, the convictions may only be considered to the extent they relate to an applicants' suitability for the specific job in question.
The Act further requires that if an employer's decision not to hire an applicant is based in whole or in part on criminal history record information, then the employer must so notify the applicant in writing. Rejected applicants can sue to challenge the employer's reliance on the background check. If, for example, an employer relies on a conviction unrelated to the job, or if the employer relied on a mere arrest, the Act permits an award of actual and real damages, as well as punitive damages (up to $10,000.00) and attorneys' fees.
Employers must be cautious with background checks. After all, what does the Act mean when it limits consideration of a felony and misdemeanor conviction "to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied?" Some situations are obvious: a convicted embezzler can probably be rejected for an accounts receivable job. But many situations are not clear. See Nixon v. Commonwealth,789 A.2d 376 (Pa. Cmmw. Ct. 2001.)
There is little guidance from the courts and the penalties for misuse of an applicant's record are significant. Because the law is so vague, and each case is necessarily fact specific, consultation with counsel is recommended. See Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, U.S. Ct. of Appeals, 8th Cir., 1975)
Still, employers are urged to observe some general parameters. The applicant's conviction record must be evaluated on its own merits rather than by applying hard and fast exclusionary rules. Those who are responsible for reviewing the conviction data must understand the nature, qualifications and duties of the position for which the applicant has applied. The employer must carefully consider whether or not the conviction directly bears on the applicant's suitability for that job. Unless the issue is clearly black and white, employers are best advised to consult experienced employment law counsel to discuss making and defending a proper decision.
Document Rejection of Applicant
Documentation is vital. When rejecting an applicant due to background check, the employer should memorialize the perceived link between the conviction and the job. Likewise, if an applicant is rejected for reasons other than the conviction record, document that fact. A contemporaneous annotation may be key to a future defense of an action under the statute.
Employers should not inform applicants of the strength of their candidacy before the criminal background report has been evaluated. If applicants are told they are strong candidates, but later they are turned down after the background report is received, then even if the conviction record played no part in the decision, the applicant may be much more likely to contend that it did. Avoiding the appearance of impropriety can prevent baseless lawsuits.
The Criminal History Record Information Act and cases decided thereunder leave open some troubling issues, such as convictions for violent crimes. An employer might conclude that an assault conviction is unrelated to the applicant's suitability for an entry-level job, but how can an employer be sure that such a person does not pose a threat to other employees, vendors or customers? Also, although the Act does not contain an exemption for religious organizations, query whether the First Amendment's free exercise clause may entitle a church or synagogue to rely on its moral or spiritual views to exclude those convicted of offenses which have no demonstrable link to the position sought by the applicant.
Further, is an employee who seeks a promotion an "applicant" about whose record the Act limits the use, or does an employer have wider latitude since the person is not a new hire?
More Investigation Maybe Required
These situations are necessarily fact-sensitive, and employers must proceed cautiously, carefully weighing the facts and circumstances. In some instances, the best practice may include obtaining more information about the conviction before relying on it to make a decision. In gray areas, documentation of the reasons for or against hiring or promoting a convicted person is even more important. There may even be situations in which employers may want to document a decision with correspondence that may be protected under the attorney-client privilege.
EEOC and Criminal Background Checks
Unlike Pennsylvania, New Jersey and Delaware do not statutorily limit the use of criminal background checks for hiring purposes. Still, employers there are cautioned that the Equal Employment Opportunity Commission (EEOC) contends that employers may not automatically bar applicants whose criminal background reveals a mere arrest record. Instead, the EEOC requires the employer to evaluate the arrest and determine whether the conduct for which the applicant was arrested is both job-related and relatively recent. The EEOC's position regarding criminal convictions is similar: an employer cannot bar all applicants with a conviction record absent business necessity.
Criminal background checks can be a useful tool for reducing theft, violence and other workplace crimes, but employers should use them carefully, particularly in Pennsylvania. Prudent Pennsylvania employers will want to invest in thoughtful, documented compliance with the Criminal History Record Information Act. Still, the proper use of a criminal background check is an indicator of a responsible employer in any jurisdiction.