The Status of Criminal Background Checks

Today’s burning question: Can a fire department legally conduct a criminal background check on applicants? I thought background checks were illegal now in most states except for law enforcement positions.

Answer: While the laws pertaining to criminal background checks have gotten more complex, there usually is a way for a fire department to evaluate an applicant’s criminal history. This area is governed by both state and federal law.

An excellent overview of the federal laws governing background checks can be found on the EEOC’s web site. Among the concerns:

• That background checks not be used as a tool of discrimination.
• That any checks be conducted in accordance with other federal law including the Fair Credit Reporting Act.
• The applicant must be informed that their criminal background will be considered in evaluating their suitability for the position.
• The applicant must provide written permission to conduct the background check.

The advice from the EEOC:

• Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don’t reject applicants of one ethnicity with certain financial histories or criminal records, you can’t reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
• Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”
• Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job – despite the negative background information – unless doing so would cause significant financial or operational difficulty.

In regards to state law, some states have adopted stricter limitations on the conducting and/or use of criminal background checks. In states that limit a fire department from actually conducting a criminal background check, an alternative may be to have the applicant supply a certified copy of their criminal background check. Some jurisdictions limit an employer from conducting a background check until after the employee has been given a conditional offer of employment. A number of states prohibit the use of an arrest in making an employment decision, requiring instead consideration only of convictions.

The EEOC also has some excellent guidance for the use of arrest and conviction information.

The bottom line: check with legal counsel in your state to know whether you can perform a background check and/or how information from a background check can be used.