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Background checks have become routine for many businesses, and many companies will ask employees about criminal records. The arrest of an employee could also hit the news, leaving HR staff scrambling to decide what to do about the fact that your business may be employing a criminal.

While there are some situations in which you are well within your rights to refrain from hiring convicts and to get workers off your payroll if they break the law, it is important to be careful not to run afoul of regulations by the Equal Employment Opportunity Commission. The EEOC is pretty clear about when you can and cannot take employment actions based on arrest and conviction, so here’s what you need to know:

  • You cant make decisions based on arrest records alone. Employees must be innocent until proven guilty not only in the justice system, but also in your employment profiling. An arrest record, standing alone, cannot be used to take a negative employment action.
  • You can investigate and act on conduct underlying an arrest. While you can’t just fire an employee who is arrested, you can look into why the arrest occurred and perhaps take action. In April of 2012, guidance released by the EEOC informed employers that employment decisions can be based “on the conduct underlying an arrest if the conduct makes the individual unfit for the position.”  A company employing drivers, for example, could be justified in terminating a worker arrested for driving drunk.
  • You can act based on convictions but there are limits. Employers may be permitted to refuse to hire someone who has been convicted of certain offenses. However, state laws differ on when conviction records can be used to justify negative employment actions. The EEOC also makes clear that policies or practices that screen based on criminal history may be prohibited, if they significantly disadvantage groups protected by Title VII of the Civil Rights Act of 1964. If a pre-employment screening policy has a disparate impact on a protected minority group, it is allowed only if there is a bona fide occupational reason for it.

HR staff needs to tread carefully when dealing with arrests or convictions. HR Alliance provides support for companies to ensure that human resources professionals are operating within the law and not leaving the business option to a possible anti discrimination case.

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