Conditional Offer Of Employment Background Check
Conditional Offer Of Employment Background Check
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Conditional Offer Of Employment Background Check
To protect the welfare and provide for the safety of students, employees, and visitors of Davidson College, Human Resources will conduct criminal, work history, and educational record background checks on all job applicants, whether such applicants would be new employees or rehired employees, who accept a conditional offer of employment or reemployment with the college, including applicants for full-time, part-time, substitute and temporary positions. In line with this requirement that background checks only be conducted after a conditional offer is made, the FCA now explicitly prohibits employers from expressing any limitation or specification based on criminal history in their job advertisements, which includes a prohibition on requiring applicants to authorize a background check as part of the initial employment application. AB 1008 , dubbed the Scarlet Letter Act,” by Assembly Member Kevin McCarty on the Assembly Floor, would repeal existing Labor Code § 432.9 and add a section to the Fair Employment and Housing Act (FEHA), which would prohibit an employer with five or more employees from (1) including on any employment application a question seeking disclosure of a job applicant's conviction history, (2) inquiring into or considering an applicant's conviction history until after extending a conditional offer of employment, and (3) while conducting a conviction history background check in connection with an employment application, considering, distributing, or disseminating information related to (a) certain arrests not followed by a conviction, (b) referral to or participation in a pretrial or post trial diversion program, and (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated. In Ban the Box” jurisdictions, the safest policy for employers who wish to obtain criminal background checks during the hiring process is to not ask about criminal history until after the conditional offer of employment is made.
According to the EEOC complaint, DolGenCorp's hiring process is discriminatory because the utilization of DolGenCorp's criminal convictions policy has not been demonstrated to be and is not job-related and consistent with business necessity.” Furthermore, the EEOC takes the view that the policy as applied did not provide for any individualized assessments of applicants who received a fail” result, to determine if the reason for the disqualification was job-related and consistent with business necessity.” The EEOC's position is that Dollar General's criminal background checks on conditional hires, a practice that has been employed in Dollar General's over 13,000 stores nationwide, dated back to at least 2004 and unequally affected black applicants, causing a gross disparity” in job opportunities. 2005) 400 F.3d 702.) Therefore, while an employer must now issue a conditional offer of employment before inquiring into an applicant's criminal history, any required pre-employment medical examination should occur only after completing both the criminal history inquiry and any other background check contingencies that comprise the hiring process. Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check.1 Thus, employers must ensure that applicants are only being asked to authorize the procurement of a background check after a conditional offer of employment has been made.
During the hiring process, background checks should be limited to only those applicants who have received a conditional offer of employment (conditioned on successful completion of the background check and any other preemployment screening). Some states specify that employers cannot ask about criminal history before an interview, and other states, like Hawaii, have outlawed performing a background check before a conditional offer of employment. Employers who hire consumer reporting agencies to conduct background checks can fulfill this obligation by supplying a copy of the CRA's report on the applicant.25 Because CRAs can be held liable for aiding and abetting discrimination under the NYCHRL, they should ensure that their customers only request criminal background reports after a conditional offer of employment.
Employers are prohibited from seeking criminal background information of applicants prior to a conditional offer of employment, unless an exception exists for the position applied for.
https://www.fairmontstate.edu/files/institutionalforms/formrepo/hr-background-checks.pdf
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