Decisions, Decisions: A Tool to Ensure Compliance with State and Federal Hiring Guidelines

The start of a new year, whether it’s a calendar year or a fiscal year, offers a natural opportunity to review your hiring practices and policies.

But the fact remains that you should never wait to implement a best practice, particularly when it’s one that ensures that you treat all applicants and employees fairly.

Conducting a background investigation on each job applicant is widely regarded as a best practice.   If you do so, you must also be prepared to follow state and federal guidelines for how you use the information revealed in such a report.

For example, if you conduct a background check on an applicant and decide not to move forward with the candidate based on information found in the report, New York State requires you to document the reasons behind your decision.

The State’s requirements are defined in Section 752 of Article 23-A which was enacted to prevent unfair discrimination against persons previously convicted of one or more criminal offenses.

The intent behind the law lies in the belief that employment can be an effective means to stopping criminal recidivism.  The State wants to keep companies from automatically rejecting job candidates based solely on their criminal histories.

Employers Next Steps

Of course, certain criminal convictions – e.g., a DUI for a job applicant seeking to become a truck driver – can create undue risk for an employer, so the state does offer two notable exceptions to Article 23-A when …

(1) There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

(2) The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

While Article 23-A is a state law, it is largely mirrored by the U.S. Equal Employment Opportunity Commission’s (EEOC’s) guidance on this subject which states that “any background information you receive from any source must not be used to discriminate in violation of federal law.”

The EEOC further clarifies its guidance with the following 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.

Given the state and federal positions on this issue, it is critical that companies adopt consistency in their approaches to hiring/not hiring individuals with criminal records, or other adverse information, AND document their actions accordingly.

To assist employers with this process, we have created the Individualized Assessment Decision Matrix™ that any company can use, even if they do not retain our services for their background investigations.

Creating Consistent Compliance

Here’s how it works.

When you uncover any adverse information in a background report, you document it in the Individualized Assessment Decision Matrix™, whether you decide to move forward with the candidate.

In each case, you need to do the following: 

Detail the reasons behind your decision, indicate the individuals involved in the decision-making process, and notate the ultimate outcome. 

There are actually 30 fields to complete in the spreadsheet (yeah, we take this stuff seriously!).

For example, if you decide that an individual with a Level 1 sexual offense from three years ago is okay to hire, you should also hire the job candidate for a similar role if they have a Level 1 sexual offense from five years ago.

The Individualized Assessment Decision Matrix™ essentially becomes your guide to follow when similar circumstances arise in the hiring process.

Whether or not you are a NY-based company, the Individualized Assessment Decision Matrix™ is a good tool to adopt for several reasons:

1.      Consistency. The Individualized Assessment Decision Matrix™ ensures there is appropriate knowledge transfer about the employer’s historical approach to handling criminal convictions, and other adverse information, in background investigation reports.

It also ensures you apply the same rigor to the questions asked and circumstances considered with each adverse event.

2.      Documentation. If you are the subject of a Department of Labor inquiry at the state or federal level, the Individualized Assessment Decision Matrix™ becomes your statement of record regarding how decisions have been made and implemented over time.

3.      Justification. Reviewing the history of your decisions and the subsequent outcomes helps you refine your process over time and justify future actions.

Using the Individualized Assessment Decision Matrix™ or a similar tool that you may create has never been more important. The dearth of applicants in the current job market means that companies are interviewing more candidates than ever before with criminal records.

Combined with the high turnover rates among many HR Departments, and it’s easy to imagine yourself running afoul of existing laws and guidelines related to the hiring of persons with a criminal history or other adverse information.

By using the Individualized Assessment Decision Matrix™, you can sidestep these potential issues and help ensure you are being consistent with your hiring practices. 

By doing so, you will ideally find the right role for each job candidate and take measures to protect your organization and yourself against future claims of discrimination.

To receive your copy of the Individualized Assessment Decision Matrix™, please click Here.