Employers that conduct background screens need to keep up as states expand the types of criminal records eligible for sealing or expungement.
In a recent article by Roy Maurer that appeared on the SHRM website, government officials such as Muriel Bowser, Mayor of Washington, D.C., have put forth a proposal to expunge the arrest records of those who were not later convicted of the crimes that they were charged with. Mayor Bowser and others feel that by offering second chance efforts would improve the job prospects for some who have had difficulty in finding work. Such legislation would limit access to criminal records for those who have been charged but not been convicted of minor misdemeanors or low-level felonies from being scrutinized by potential employers.
While most states allow records to be either expunged or sealed, some states do not allow it or will only allow it under a specific and usually stringent set of circumstances. The laws surrounding these types of inquiries when made by employers do vary from state to state.
This poses a challenge for employers who want to protect themselves from potential litigation. Currently, there are cases of discrimination filed against employers for making hiring decisions which were based on records that had either been sealed or expunged.
What HR Professionals Can Do
According to Sage Knauft, a partner of the law firm Walsworth, based in in the Orange County, California, there is a within the legislatures of many states to expunge or seal such records. Today the incarceration rate in the United States or those who have some sort of a criminal record is as high as 1 in 3. Many within government believe that this presents an almost unsurmountable challenge to those offenders who are attempting to re-enter society and the world of work. Efforts such as California’s Ban the Box initiative can help these people to potentially re-enter the workplace without the stigma of past mistakes severely which can severely curtail their chances of getting hired.
Knauft absolutely advises HR professionals from relying on criminal history information found online without further verification in order to avoid any potential discrimination lawsuit being filed. Much of the information that can be found on many websites online may be extremely out of date or even inaccurate and may not reflect records that have been either sealed or expunged.
If a positive hit on a past criminal record is found, Knauft recommends documenting everything. Before making a hiring decision, it is important to explain to an applicant why such a record can impact a hiring decision. They must be allowed time to respond. In this case, Knauft recommends that a potential new hire will let the prospective employer know whether or not such a record has been sealed or expunged.
The most important thing for HR professionals to do is to keep informed of all laws that can affect the hiring process and to document everything. This is especially true when it relates to employment laws surrounding expungement and sealing of past criminal records.
If using a third party for these background checks, Knauft recommends that they only use a reputable background screening vendor. The vendor should be able to explain what safeguards that they employ and how they cross reference any positive hits with current laws regarding the sealing or expungement of those records. These results should also be verified before making a final hiring decision. In the end, this can go a long way to protect the employer from a potential discrimination lawsuit.
Because negligent hiring lawsuits are also on the rise, employers need to protect themselves by performing background checks on any potential employees. It is important, however, to be aware of all current employment laws to make sure that you are making the right decision whether or not to hire someone.
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