When hiring, there is no federal law that prohibits an employer to ask about arrest and conviction records. However, The US Equal Employment Opportunity Commission (EEOC) recently passed changes to their hiring guidelines which now prohibits the results of a criminal background check from being the determining factor in hiring decisions. Just because the applicant has an arrest on record does not mean that he or she is guilty of the crime. Now the EEOC has taken the stance that the employer cannot automatically reject the candidate because there is a record of arrest. Under these new guidelines, the employer is obligated to allow the applicant to explain the circumstances of the arrest(s) and then make a reasonable effort to determine whether the explanation is reliable. Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested, the employer must consider the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred. This change by the EEOC does not outlaw background checks, but employers who refuse to hire someone with a criminal record could be liable for illegal discrimination if the decision disproportionately affects a candidate in a minority groups. Contact the HR Professionals at Employees Only for assistance in running background checks and guidance in staying compliant in your hiring practices. We can help!
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