Avoid These Mistakes and Make Better-Informed Hiring Decisions

Assault. Murder. Fraud. Theft. Driving while intoxicated. Rape.

Are applicants with these or other serious offense histories getting past your screening process?

If you are asking the standard criminal history question on most employment applications, they probably are.

Following are seven common but critical mistakes we see employers make every day.

If you are making just one of these mistakes, you have a giant gap in your background screening.


I. Ignoring Misdemeanor Offenses

Many employers make the mistake of only asking about felonies.

Many criminal offenses classified as a felony in one state may be a misdemeanor in another state. For example, statutory rape is a felony in Texas but may be a misdemeanor in Louisiana.

The real issue for employers should not be the classification of the offense but the nature of the underlying conduct.

What did they do and how does that relate to the job for which they are applying?

For instance, do you really care that your delivery service driver’s DWI conviction last year was a misdemeanor?

No, what you care about is that his past conduct may make him a high-risk candidate for your driving position.

Ask about felonies and misdemeanors!

2. Only Asking About Convictions

When employers limit their considerations only to convictions, they miss many case criminal offenses that may be of legitimate concern.

For instance, most states offer defendants for even serious offenses deferred adjudication. Typically, this means that the individual pleads guilty or no contest (meaning he does not deny or challenge the allegations) to the charges against him and agrees to serve probation.

The court accepts his plea but does not immediately enter a conviction in the case.

The probation may be a simple as staying out of trouble for six months or may require additional actions such as submitting to monthly drug tests, enrolling in school, maintaining work, completing community service, or even spending weekends in jail.

If the defendant successfully completes the probation, then the case may be dismissed. If he screws up the probation, the court can use his plea to enter a conviction against him without a trial.

The employer’s consideration should be whether it is reasonable to believe that the individual engaged in the alleged conduct.

If the individual pleaded guilty or no contest, most employers believe it reasonable to believe that the individual engaged in the underlying conduct.

Some states have other dispositions such as pre-trial diversions or first-time offender programs. These often have pleas and probation conditions similar to deferred adjudication.

Ask about all cases filed, regardless of outcome, in order to make informed hiring decisions.

3. Ignoring Dismissed Cases

Employers often believe that they cannot consider dismissed cases or arrest records.

Under federal law and in most states, this is not true.

Cases are dismissed for a variety of reasons.

Sometimes the defendant agrees to pay the victim restitution.

Other times, they agree to attend anger management classes or fulfill other terms of probation (as in a deferred adjudication).

Often in domestic violence cases, the complaining witness refuses to cooperate with the investigation.

And while it is true that the fact of an arrest or dismissed case, in and of itself, does not mean that the individual engaged in the underlying conduct, it may warrant additional research by the employer before disregarding it.

When discussing this, the EEOC has said that the employer should determine whether it is reasonable to believe that the individual engaged in the underlying conduct.

Our recommendation to employers is, whenever considering a dismissed case where the alleged underlying conduct is of  concern, ask Imperative to obtain additional information such as police reports and court documents so that you can make an informed decision about the underlying conduct.

Include dismissed cases in your considerations – but get additional information before making a decision

4. Only Asking About Cases in the Last Seven Years

Under federal law and all but a few state laws, employers can consider an applicant’s entire criminal history, regardless of how long ago it occurred.

Of course, this does not mean that all older offenses are equally relevant, or relevant at all, to employers’ considerations. This will depend on the applicants’ experiences and behavior since the offense, the nature of the offense, and its relationship to the position.

For instance, an applicant with a fifteen-year-old DWI conviction but no other criminal history and an acceptable, relevant employment history is likely not a high-risk candidate for a delivery-driver position.

However, a fifteen-year-old sexual assault conviction may make an applicant high risk for a patient-care position in a nursing home. Again, the details of the offense and the rest of the applicant’s history, experience, and skill should also be taken into account.

Remember, you cannot evaluate information about which you are unaware.

Do not place age limitations on the criminal history information you request from applicants. 

5. Failing to Collect “Individualized Assessment” Information

The Equal Employment Opportunity Commission maintains that employers should give each applicant an opportunity to explain why the employer’s criminal history policy should not apply to them.

Calling this an “individualized assessment,” the EEOC’s 2012 guidance includes a lengthy list of items that an applicant might include in such an explanation, including:

  • The circumstances surrounding the offense,
  • Age at the time of the offense,
  • Work and education history, and
  • Character references.

EEOC investigations are time-consuming and expensive.

Giving applicants an opportunity to frame their criminal history in the full context of who they are today, will help satisfy the EEOC’s expectations while still gathering enough information to make a well-informed hiring decision.

6. Ignoring State or Local Laws

A handful of state and local governments have “banned the box,” delaying the criminal history question until later in the employment process. Some of these rules delay the question until the interview while others delay it until after an offer has been made.

Beyond banning the box, some jurisdictions have implemented “fair chance hiring” ordinances.

Some states limit employers to considering only pending cases and convictions.

Others limit the age of offenses that employers can consider.

A new trend is to require the employer to document how they used criminal history in making a hiring decision. New York City even requires that employers provide a copy of the documentation to applicants!

It is important to pay attention to the constantly changing rules and regulations in each jurisdiction where a business operates and tailor your criminal history inquiry to meet those requirements.

Imperative works with our clients to identify the rules specific to each jurisdiction.

Know the rules where for each hiring location!

7. Failing to Verify the Information Provided by the Applicant

While many applicants are honest about their criminal history, others refuse to acknowledge their past failures in behavior, judgment, and self-control.

In an effort to seem honest and forthcoming, some even admit one or two offenses in their past but omit other more serious offenses.

While giving applicants an opportunity to divulge their past criminal behavior is a critical step in your background screening process, it is equally important that employers conduct a thorough criminal background investigation to identify dishonest applicants before their first day on the job!

Trust, but verify!

If your organization is making any of these seven mistakes or you’d like to review some of the other items Imperative recommends that employers consider, request our free sample criminal history inquiry today.

Also,  the criminal history inquiry is just one component of a bulletproof background screening process.

To evaluate the rest of your  process, download our free e-book, Seven Steps to Making Confident Hiring Decisions: Preventing Loss, Liability, and Litigation While Keeping Criminals, Creeps, and Crazies Out of Your Company.