Employers are advised not to have a blanket exclusion on hiring people with criminal backgrounds, experts say in response to the Equal Employment Opportunity's guidance on criminal background checks.
“The one thing the policy should definitely state is that there is no automatic ban” for an applicant with a criminal conviction, said Amy L. Bess, a shareholder with law firm Vedder Price L.L.P. in New York.
Pamela Q. Devata, a partner with law firm Seyfarth Shaw L.L.P. in Chicago, said she recommends employers remove any questions about criminal history from their application forms altogether and move it to a later stage, such as after the job interview or upon a conditional offer of employment.
Michael A. Warner Jr., a partner with law firm Franczek Radelet P.C. in Chicago, said, “I would also document in your policies why certain convictions, certain types of criminal history” would disqualify a job applicant, he said.
He also suggested that employers document that the individualized assessment has been conducted, “so that if you're ever charged by the EEOC, you have a record to show you went through the process the EEOC is asking you to go through.”
“Try to make sure there's a connection between a demonstrable job requirement, and any restrictions that (the employers) are putting in place with respect to criminal history,” said Marc A. Mandelman, senior counsel with law firm Proskauer Rose L.L.P. in New York.
Hotel employers, for example, “might assess the criminal history differently for a banquet employee than they might for someone who brings your tray up to your room for room service, because there's more opportunity to commit crimes” in the latter case, said Sheila B. Gladstone, chair of Austin, Texas-based law firm Lloyd, Gosselink, Rochelle & Townsend P.C.'s employment law practice group.
She added, however, “I still believe that employers should try to learn as much as they really can about people before they hire them, so they know what they're getting into. But don't automatically exclude people” based on a criminal history.
Jonathan R. Cavalier, an associate with law firm Cozen O'Connor P.C. in Philadelphia, stressed the need for training. It is easy to put a policy in place, he said. The problem arises when it is not followed either intentionally, or because of a failure to provide training on its implementation. “A policy is just a piece a paper if nobody knows what it means or how to follow it,” he said.