Robert P. Tinnin, Jr. and Glenn A. Beard, Editors
Tinnin Law Firm, A Professional Corporation

Vol. 14, No. 5
May 2008

QUESTION CORNER

Arrest records and convictions: risky business

Robert P. Tinnin, Jr.

Q My company conducts background checks on all final candidates for employment before offering them a job. Our policy prohibits us from hiring anyone who has been convicted of a felony. Is our policy legal? Can we also check arrest records?

A When there is a business reason for doing so, refusing to hire an individual convicted of a felony is permissible. However, a blanket policy that rejects candidates who have been convicted of any crime ― even a felony ― is almost always a violation of Title VII. Rejecting an applicant based on arrest records is even riskier and should be avoided if possible.

Blanket bans on arrest or conviction records invalid

The Equal Employment Opportunity Commission (EEOC) has adopted a formal position against the use of arrest or conviction records as an absolute bar to employment, and the federal courts have generally agreed. The EEOC has explained that the use of arrest records to disqualify candidates at the outset will in most cases disproportionately affect African-American and Hispanic candidates, often resulting in unlawful disparate impact discrimination. Therefore, you must be able to demonstrate that the disqualification is job-related. If you request arrest or conviction records in a background check, it will be assumed they were relied on even if they weren't.

Proving job-relatedness

Conviction and arrest records may be considered evidence of conduct that renders an applicant unsuitable for a particular position, but you're still required to show its relevance to the job. The EEOC offers three considerations for determination of whether an arrest or conviction makes an applicant unfit for a particular job: (1) the nature and gravity of the offense, (2) the time that has passed since it occurred, and (3) the nature of the job sought.

Certainly, some jobs require a higher standard of conduct. Common examples are law enforcement or safety-sensitive positions, jobs that give the employee easy access to the property of others, or any position that involves contact with the general public. Sometimes "job-relatedness" is relatively easy to determine ― an arrest for driving while intoxicated is clearly relevant if you're hiring a bus driver.

Establishing likelihood of conduct

An arrest record does no more than raise a suspicion that an applicant may have engaged in a particular type of conduct. As a result, the EEOC requires you to determine whether the applicant is likely to have committed the alleged conduct before disqualifying him from employment. Of course, that's extremely difficult to do because you're required either to accept the employee's denial at having engaged in the conduct or attempt to obtain additional information and evaluate his credibility. Basically, you must determine whether the explanation offered is credible before eliminating the candidate from employment opportunities.

In affording an individual a "meaningful opportunity to explain" an arrest, you should meet with him, provide him with the information you have received, and give him a chance to provide you with information that may be relevant to your decision. The key isn't only to let the employee talk, but also for you to listen. The EEOC expects you to take more than a passive role in the process. If you can verify the candidate's explanation with a phone call to his previous employer, the EEOC wants you to do just that. If the circumstances and explanation offered don't satisfy your concerns, you're still advised to proceed carefully before disqualifying him from the job.

Bottom line

Use of arrest or conviction records in evaluating applicants for employment can be a tricky business, and you should avoid doing so for all but the most sensitive positions. Consider the likelihood that the candidate actually committed the crime, and offer him an opportunity to explain his conduct. Using felony convictions as a ban to employment poses less risk because you don't have to consider the probability of whether the candidate committed the crime. Furthermore, while you still have to show business-relatedness, felony convictions seem to be subjected to a less stringent standard. However, an absolute ban on hiring applicants with either an arrest or conviction record will not be upheld.

"Question Corner" is a regular monthly feature of New Mexico Employment Law Letter. Submit any questions you want the editors to address to rtinnin@tinninlawfirm.com.

Copyright 2008 M. Lee Smith Publishers LLC

NEW MEXICO EMPLOYMENT LAW LETTER is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in the newsletter should be addressed to an attorney.