[Originally Published June 16, 2021 Last Update April 26, 2022]
Employers worldwide include criminal background check questions to verify the applicants’ criminal records in their employment applications.
A criminal background check of prospective hires helps firms vetting job applicants’ antecedents during the hiring process. Here are 10 points to consider:
1. Why do firms undertake a ‘criminal record check’?
Problems can arise when after the selection process, the hired employee indulges in activities antithetical to good conduct and acceptable workplace behavior, manifested in workplace violence, sexual misconduct, financial malfeasance, theft, etc.
The inclusion of criminal background check questions protects firms from claims arising from hiring done without due process. There are instances of firms having hired without the required due diligence of criminal background checks and the offending employee when asked to leave, slapping the firm with large damages claims and, often, even retention claims.
2. Who is to be subjected to a criminal record check?
Usually, criminal record checks are conducted for new hires. However, criminal background checks can also be performed for current employees, sometimes as a matter of periodic routine checks or before a promotion, a transfer, or while effecting changes to some terms and conditions of employment.
3. How can the HR manager ensure the quality of the job application criminal record check?
The best criminal background checks are accurate, comprehensive, timely, and obtained using legal means.
As a first step, a thorough criminal record check begins with the inclusion of criminal background check questions in the job application. The checks can be time-consuming, expensive, and require a very high degree of diligence. The difficulties increase manifold for inter-state and international hires.
The HR manager should not allow any budget or time-related constraints to cause the criminal history records check process to be abridged.
4. How do firms undertake the criminal record check of applicants?
Usually, the services of external, third-party firms specializing in providing criminal history checking are availed of. Due to their specialized competencies, they are better equipped to undertake a thorough, accurate, and comprehensive check.
Over time, these firms may also provide feedback on shortcomings in the system and on measures to improve the job application criminal background checking process.
The efficacy of the process is also dependent on the ability of the firm’s HR team to understand the nuances of the criminal record check process.
Suppose the HR team is aware of the extent of the criminal record data held with various agencies and the level of access that the agencies permit. In that case, it helps ease any friction that may arise between the firms requesting and providing the background check service.
5. As an HR professional, what are the legal requirements of criminal record checks that I need to be aware of?
Firms that decide to include an employment application criminal history question need to be aware of and adhere to the local legal requirements before initiating a criminal record check.
Before initiating the record check, the employee or the applicant must be informed that a criminal record check may be initiated on him. The details of the actions that would follow if an adverse report is obtained also need to be conveyed to the applicant. Consent, in writing, needs to be obtained from the employee/applicant confirming their willingness to be subjected to the criminal record check.
The firm is also obligated to provide the employee/applicant with a copy of the report and details of the firm that furnished the report. This is required to be done before any adverse action is initiated based on the report.
The employee/applicant has the right to seek a copy of the report and the opportunity to defend/contest any observation contained in the report.
6. What should firms look to verify during the criminal records check of applicants?
The firm should check arrest records, criminal convictions, bookings for acts of felony/misdemeanors, etc., before arriving at a selection decision. The nature of activities/interactions indulged in by the individuals on social media platforms also needs to be checked as part of online criminal background checks.
7. What rights do the employees/applicants have?
Due to the limitations inherent in the process, the criminal record check report received by the firm could be incomplete or inaccurate. To protect the rights of the employees/applicants, the law requires the employer to provide the individuals with an opportunity to furnish additional information to prove the incompleteness/inaccuracy of the report.
In the interest of fairness, the individuals need to be given a copy of the report and sufficient time provided to revert with the required additional information.
If the individuals fail to furnish the required information within the stipulated time, or if the furnished information is not compelling enough, the firm can initiate the adverse action process keeping the individual informed.
After this, for any further grievance redressal, the individuals will need to approach the concerned judicial authorities for dispute resolution.
8. What factors should be considered in the hiring/rejection decision?
After the criminal history check report is obtained, the hiring firm should take into account the nature and gravity of the offense, whether the individual is charged but not convicted, the time that has elapsed since the conviction/completion of the related sentence, the role being considered for, and the impact on the firm’s business interests.
The policy for hiring/rejecting candidates whose criminal record checks returns feedback that they have been charged but not convicted will vary between firms. The HR manager should ensure compliance with the laid down internal policy on the subject.
9. What do I need to do to safeguard the data privacy concerns of the applicants?
The best criminal background checks are undertaken with the utmost care and responsibility. As a responsible professional, you should be acutely cognisant of data privacy and safety requirements.
To maintain the integrity of the process and allay any employee/applicant concerns, you should maintain a constant dialogue with both the service providers and the individuals.
10. Does the firm need to undertake a criminal record check even if the applicant comes with good references?
Yes, everyone is required to be subjected to a criminal history check. This has been made necessary due to the rising employment fraud cases with applicants falsifying education, employment, and criminal history.
The criminal background check also helps the firm safeguard against potential legal liabilities arising out of criminal hires.
The criminal record check is a routine process. Good employers are expected to adhere to global best practices when undertaking these checks to ensure transparency, fairness, compliance with relevant legislation, and data security.
[Originally Published June 16, 2021 Last Update April 26, 2022]