If you're in charge of HR and play a role in your company's hiring decisions, you probably don't want to hire any crimals ... right? Seems logical, but let's not jump to any conclusions just yet.
Obvioulsy, an employer has a legitimate interest in preventing violence, theft, etc., in the workplace, but what sort of "criminal background" would justify rejecting an otherwise suitable candidate?
Let's suppose you have a candidate who was convicted of a felony 20 years ago, served time in prison, and has since been released. Can this applicant be rejected for this criminal record?
How about a candidate who candidly admits to being arrested just last week on a drug possession charge? Can this candidate be summarily refused employment?
The answer to both of these question is ... "it depends."
What employers need to know about criminal background checks is that you must proceed with caution.
Many States have laws expressly prohibiting or limiting the use of information obtained from criminal background checks -- which promote the public policy associated with rehabiliation of past offenders, along with protecting individual privacy interests.
So a few simple guidelines can help to ensure that only legitimate considerations are relied upon in the applicant screening process and that the process itself will withstand scrutiny by the EEOC if ever challenged.
First, it is important to recognize that an arrest is not the same as a conviction. As we all know, our great Constitution guarantees that a person charged with a crime is "innocent until proven guilty." So the fact that an applicant has been "arrested" for something should carry little or no weight unless and until they are actually convicted of a crime.
Second, in New Jersey, there is no statutory prohibition against adverse employment action based upon a criminal conviction record. In other words, an employer in NJ can refuse to hire someone with a criminal record. But again, an employer would be well served to proceed with caution. Specifically, an employer who turns away an applicant with a criminal record may be expected to show that the underlying criminal offense creates some risk of harm to the business (e.g., an applicant for a book keeper position was convicted of embezzlement).
Third, it should be recognized that an applicant screening process that is perfectly legitimate on its face, may have an unintended disparate impact upon a particular race or national origin. If this were the case, it would be unlawful. For this reason, an applicant screening process that incorporates a criminal background check should be tested and monitored to ensure that it does not impact any one race or national origin disproportionately.