10 issues to consider for background checks

• If you decide to keep criminal conviction questions on your application, only ask about convictions that you have determined to be job related and consistent with business necessity.
• The use of arrest records is discouraged by the EEOC and prohibited by many state laws.
• You should document the reasons you considered certain convictions to be job related and consistent with business necessity for each position hired.

Editor’s note: This is the third in a three-part series focusing on criminal background checks. Read part 1 and part 2.

Hospitality employers are heavy users of criminal background checks for potential employees. Therefore, they must take seriously the U.S. Equal Employment Opportunity Commission’s emphasis on these types of discrimination cases. If you are using or considering implementing a criminal background check policy to screen applicants or employees with certain criminal histories, you should take this opportunity to reevaluate your policy. Although no model policy is suitable for all employers, below are the issues you need to consider when developing or reevaluating your policy.

1. The job application: The EEOC guidance recommends that employers not ask about convictions on job applications. In light of this, you should consider whether you will retain such a question on your employment application. If you decide to keep criminal conviction questions on your application, only ask about convictions that you have determined to be job related and consistent with business necessity. Include a clear disclaimer informing the applicant that answering “yes” does not constitute an automatic bar to employment and the hotel will consider other factors in making its hiring decision.
   
2. Criminal background reports: The guidance is unclear whether the Commission expects employers to request from a third-party provider only that criminal history information that is job related and consistent with business necessity. If practical, you may want to consider requesting your vendor provide only information that meets this “job-related” test. This practice will minimize the risk of human error when reviewing criminal background records by excluding irrelevant information.
   
3. Timing: Hospitality employers may want to consider checking an applicant’s background after a conditional offer of employment has been extended. This will reduce the number of applicants for whom you run background checks, and therefore reduce your potential liability.
   
4. Arrests vs. convictions: The use of arrest records is discouraged by the EEOC and prohibited by many state laws. The EEOC indicates that if you consider arrest records for applicants or employees, you must perform an independent investigation of the facts surrounding the arrest. Using the fact of the arrest alone as the basis for an adverse action is unacceptable.
   
5. Job related and consistent with business necessity: For each position, a hotel must consider the following criteria: 1) the nature and gravity of the offense or conduct, including the harm caused, the specific elements of the crime and whether it was a felony or misdemeanor; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the job held or sought. These factors must be used to determine whether an exclusion based on a specific conviction is job related and consistent with business necessity. There may be certain jobs for which a felony theft conviction in the past five years is relevant but not so for other positions.
   
6. Documenting your decision: You should document the reasons you considered certain convictions to be job related and consistent with business necessity for each position hired. This can be time-consuming and tedious but will strengthen your case if the EEOC investigates your policy.
   
7. Individualized assessments: The EEOC strongly recommends that employers conduct an individualized assessment for each applicant to allow the individual to demonstrate that he or she should not be excluded based on their individual situation. Before excluding an applicant based on criminal history, inform the applicant that he or she may be excluded and provide an opportunity for him or her to respond. Include a provision in your policy that requires an individualized assessment of applicants who present information regarding their criminal history. The EEOC guidance provides examples of information that should be considered, such as the facts or circumstances surrounding the offense or conduct; the number of offenses for which the individual was convicted; the length and consistency of employment history before and after the offense or conduct; and rehabilitation efforts, e.g., education/training, to name a few.
   
8. Avoid disparate treatment: When making an individualized assessment, you should be careful to treat all applicants or employees consistently. If you make an exception for a white applicant based on post-sentence rehabilitation efforts but fail to make an exception for a minority applicant who was similarly rehabilitated, you may be subject to a disparate treatment discrimination claim.
   
9. Do not maintain a blanket policy: If your hotel currently has a blanket policy of excluding all applicants with a certain criminal history (i.e., all applicants with a felony conviction, or all applicants with a felony theft conviction in the past 10 years), revise your policy immediately.
   
10. Train hiring managers: Train hiring managers on your criminal background policy, the factors considered in creating the policy and how to perform an individualized assessment. Implementation of your policy, especially the individualized assessment component, should be as uniform as possible.

The EEOC’s guidance and crackdown on the use of criminal background checks will have a significant impact on the hotel industry. The complexity of laws that hotel employers must consider when hiring employees is burdensome. Now is the time to revise your policy on conducting criminal background checks.

Disclaimer: The foregoing provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose.

Andria Ryan is a partner in the Atlanta office of Fisher & Philllips, LLP and serves as the chair of the firm's Hospitality Industry Practice Group. She represents employers in virtually every area of employment and labor law and can be reached at 404-240-421 or alureryan@laborlawyers.com.

The opinions expressed in this column do not necessarily reflect the opinions of HotelNewsNow.com or its parent company, Smith Travel Research and its affiliated companies. Columnists published on this site are given the freedom to express views that may be controversial, but our goal is to provoke thought and constructive discussion within our reader community. Please feel free to comment or contact an editor with any questions or concerns.