Student Criminal Background Searches

Schools now requiring volunteers to obtain backgrounds prior to entering the workplace and interact with student body.  Recently Pennsylvania enacted new legislation making it state law to do just that.  Amending the State Child Protective Services Act now teachers, administrators, contractors and volunteers will all be required to submit to criminal background search that would include sex offender search and child abuse case clearance.

As a result of the Sandusky scandal the Task Force on Child Protection was able to get this legislation passed.  For years teachers have been required to go through a background but now all those interacting with school students will have to be cleared. The only ones exempt will be the School Board members. However some are going through the...

Caution When Searching Background of Applicants

The U.S. Department of Justice has moved to intervene to defend the constitutionality of the Fair Credit Reporting Act (“Act”) against a consumer reporting agency accused of violating § 605 of the Act.

On November 23, 2010, Shamara T. King filed suit against General Information Services, Inc. (“GIS”) in Pennsylvania federal court claiming violations of the Act.  (See, King v. General Information Services., No. 2:10-CV-06850 (E.D. Pa. Nov. 23, 2010).  Specifically, King claims that when she applied for a job with the United States Postal Service, GIS performed a background check that included details about a car theft arrest that occurred more than seven years prior to the requested background check.  According to § 605(a)(5) of the Act, consumer reporting agencies cannot provide...

Sample Criminal Background Check Policy

The Company may conduct criminal record checks as part of the application or licensing process. This search may include appropriate court records relating to the applicant’s county of residence for evidence of felony and/or misdemeanor convictions and potentially searches of the Massachusetts criminal offender record information (CORI) database, and/or other state-by-state or national criminal databases followed by verifying county searches. Where a criminal record check is part of a general background check for employment, volunteer work, or licensing purposes, the following practices and procedures will generally be followed.

  1. Criminal record checks will be conducted in accordance with applicable law. Applicants or employees will will...
Title VII

While Title VII does not prohibit employers of requiring to provide arrest and conviction records. But it is unlawful to use this information for employment based on race, color, national origin, religion, or sex. Two examples of misuse that causes a violation of Title VII to occur:

Disparate Treatment. The Act does ban employers from treating individuals with similar criminal records differently on account of race, color, national origin, religion, or sex. An employer may face liability for disparate handling if it hires white applicants with criminal backgrounds over minority job seekers that have similar experience, qualifications and have the same criminal histories.

Disparate Impact. The Act bans employers from using backgrounds in a fashion which disproportionately...

Best Practices When Using Criminal Histories

When utilizing criminal history information in pre employment decisions:

  • Blanket policies or practices that exclude individuals from employment based on having any criminal record unless required by state or federal law should be eliminated.
  • Educate managers and those hiring and decision-making regarding Title VII on what is prohibited and could be considered employment discrimination.
  • Ensure that final decision-makers do not have knowledge of any aspects of applicants' criminal history not relevant to the hiring decision. Although not stated by EEOC, it remains a good policy to follow.

Developing a Policy

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