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Criminal History: A Public Document Under Increasing Scrutiny for Use in Background Screening

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September 11, 2014 Return to News & Events

Criminal History: A Public Document Under Increasing Scrutiny for Use in Background Screening

One of the most important public records utilizing in pre-employment background screening is Criminal History records; they are also one of the most controversial. 

Criminal History Background Check is defined:

A criminal history background information check is the review of any and all records containing any information collected and stored in the criminal record repository of the Federal Bureau of Investigation, the state Department of Public Safety, or any other repository of criminal history records, involving a pending arrest or conviction by a criminal justice agency, including, but not limited to, child abuse crime information, conviction record information, fingerprint cards, correctional induction and release information, identifiable descriptions and notations of convictions; provided, however, dissemination of such information is not forbidden by order of any court of competent jurisdiction or by federal law.

Controversy exists primarily with the use of Criminal History Reports as part of a pre-employment screening and, specifically, at what point or step in the pre-employment process.  There are claims that suggest the use of criminal history reports as part of the “initial” background screening process discriminates against specific demographic groups.  And the Equal Employment Opportunity Commission agrees.

In April 2010 the EEOC released a guidance document as a means of providing a clear definition of when and where a Criminal History report could be used in background screening.  It strongly suggests that criminal history use should be specific to the position applied for as well after the initial offer of employment.  This process attempts to create an equal “playing” field for all candidates.  Eliminating Criminal History from the initial portion of the screening processing theoretically may eliminate “disparate impact.”

Disparate impact is defined as:

…A theory of liability that prohibits an employer from using facially neutral employment practices that have unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.

Adam Almeida, President and CEO of states:  “The use of Criminal History reports will remain controversial even as more states and municipalities enact ban-the-box legislation.  The EEOC will remain dutiful in watching the use of criminal histories and will continue to scrutinize their use as part of pre-employment screening.”

Recently Ban-the-Box legislation has been enacted in the city of Portland, Oregon.  Changes continue with background screening policies in that city.

From July 10, 14):

Just two months ago, the city removed the box asking applicants to identify if they're a convicted criminal or have been incarcerated. This month, language saying the city may require a criminal records check vanished, too.

Almeida states:  “The very fact that cities are dropping criminal records checks to be eliminated only highlights the controversy of using criminal background checks.  They can be used, but one must understand in what situations and when to use them in the screening process.”

Ultimately, the use of Criminal History Records will remain controversial.  The appropriate use of these documents appears to change frequently, and with governmental agencies scrutinizing their use significant challenges arise for businesses and organizations.

“A best business practice for pre-employment screening is to utilize a third-party background screening company,” Almeida states.  “These entities understand the legal and lawful use of all public records in the pre-employment vetting process, especially Criminal History reports.” is a third-party background screening company operating in all fifty-states and fully versed in the legal and lawful use of public records, including Criminal History reports.

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