The candidate for hire made the short list. He/she is on the top, but the criminal background check came back with a negative report. This isn’t that surprising; according to the US Department of Justice, 30% of American adults have criminal records. This includes individuals erroneously arrested and never convicted, those who have a non-malicious one-time incident, as well as those with multiple convictions pertaining to violent crimes. So what is the next step?
A clear understanding of the facts and circumstance creating the negative check is crucial. One, you do not want to lose a potentially perfect candidate over a past mistake that was recognized and dealt with accordingly. Two, if the situation requires turning the candidate down because of the check, you are required to inform them of the facts. If they choose to take legal action, you will have to provide a letter of justification. If the candidate is from a protected group, the situation becomes even more delicate. There are five crucial points to consider that will help you not only meet EEOC compliance, but also help you choose wisely.
- Nature and Gravity of Offense
Criminal charges can range from youthful indiscretion to very serious charges. In addition, sometimes an unintentional action can result in serious charges. For example, if a motorist causes an accident resulting in death, they may be charged with involuntary vehicular manslaughter and sentenced to time in jail. If he/she is a qualified applicant, does this record actually hinder his/her ability to do the work, create a security hazard, or evoke a situation of distrust? When examining an applicant’s record, consider the following:
¨ Were property and/or people harmed?
¨ If yes to either question, how serious was the harm?
¨ Was it intentional?
¨ Were there any extenuating circumstances?
¨ Was it a misdemeanor or a felony?
- Age at Time of Conviction
Whether the arrest/conviction was over a minor indiscretion or a more serious crime, how old was the applicant when it happened. Many individuals have committed serious mistakes in youth, which they not only served time for, but also deeply regret. For some, the conviction was the turning point of their lives and they have gone on to become hardworking, respected men and women of integrity who pursued higher education and excel in their fields of expertise. Keep a clear perspective by asking the following:
¨ How old was the applicant at the time of the arrest?
¨ Did the applicant show remorse?
¨ Did he/she make appropriate restitution?
¨ When necessary, did he/she participate in and complete a rehabilitation program?
- Length of Time Since Conviction and Completion of Sentence
While there may be justifiable reluctance to hire someone for a high-level position who has acquired multiple DWI convictions in the last five years when an equally qualified applicant has a clean record, it is almost always unjustifiable to turn someone down simply because they had a single DWI more than ten years prior. In your assessment, evaluate the following.
¨ How long has it been since the last conviction?
¨ How long has it been since completion of sentence? (or last sentence if more than one)
- Existence (or lack of) Rehabilitation
When the basis of the arrest indicates a deeper issue or an ongoing problem, it is important to delve deeper. For example, if the background check reveals multiple charges involving alcohol, drugs, or domestic disturbance. Sufficient length of time since conviction is not the complete answer. Appraise the following:
¨ When appropriate, has the applicant exhibited remorse and a desire for change, following through with rehabilitation?
¨ Have they proven themselves with a sufficiently lengthy and clean record of achievements in the years since the incident?
- Nature of the Position Being Filled
Equally important is considering the nature of the position, which is being filled, and whether the nature of the arrest carries pertinence. For example, while one DWI conviction five years prior may have little bearing on a clerical position, it would be significant when hiring a UPS driver. Carefully consider whether the nature of the crime poses a potential security risk for the position being filled. If you believe it is, write a statement of justification, document it, and file it for in the event that you need to support your decision in court.
Understanding each of these five areas is pertinent in making the correct decision. They are also valuable tools if you choose against the employee and are later required to submit a letter of justification.
Call Springborn Staffing today for all your staffing needs in the Bangor and Portland, ME area.
