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It is important to remember that an arrest is not a conviction or proof of guilt. The EEOC limits consideration of arrest records in hiring decisions because of the disproportionate effect on some protected groups. Even taking into consideration the EEOC Guidance and strong stance against considering arrests, there is an exception if the applicant has an arrest and pending charge for something that is job-related and if convicted you would not hire them.
CAUTION: Read below before acting on this exception.
Kevin von der Lippe, Private Investigator who leads CAI’s background checking services advises taking the following precautions to protect your company while also complying with EEOC guidance.
How do you balance the need to protect your company (and your employees) and the rights of your applicants when reviewing a background check and you discover a pending arrest? Start by determining if the pending charge is job related and consistent with business necessity—that is, if the applicant was convicted of the charge, would you care? If not, then the pending charge is not relevant. If the charge was a conviction that would cause you to decline employment, then you want to pause the application process until the applicant can resolve the pending issue. Ask the applicant to provide proof of resolution. I would recommend setting a firm date and time for the applicant to respond, usually a few days after the scheduled court date. If the applicant does not return by the specified date, or is convicted; there is no further consideration. If the applicant returns and the charge is dropped, proceed with the hire.
Do not forget that even though you are suspending the application process, you still must follow the federal Fair Credit Reporting Act if you used a third party to conduct the background check (aka a consumer reporting agency). When you suspend the application process, you need to provide the applicant with a copy of the report, summary of rights under the FCRA, an NC Security Freeze document, and the Pre-adverse Action letter. If the applicant fails to meet your deadline, or is convicted, then you would send out the Adverse Action letter.
Suspending the application process is usually not too much of a burden for most employers if the court date is relatively soon. If the date is beyond the time that you must fill the position, I would recommend filling the position and then do your best to accommodate the applicant who is able to successfully resolve their issue.
By following the above steps, you reduce the risk that the EEOC would find that you made a final employment decision based mostly on an arrest.
Alternatively, some employers take the position that they would rather take the risk of an EEOC charge versus bringing a potential problem employee into their workforce, particularly when there are other qualified candidates to chose from. As with many HR issues there are several sides to consider in each decision. We're here to help you balance the various interests and chose a course of action that fits your company. Give anyone on the Advice and Resolution team a call today and we'll jump into action to help you resolve your dilemma! We're here 24/7!
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