If you are going to conduct background checks, you need to know what information you are allowed to request and who you are allowed to request them from. As well as how to record and store the data that you do collect. With all of the federal and state regulations on who, when and how they can be screened it’s easy to cross the line, but there are some basic guidelines that will help you stay on the right side of the law while protecting your company from the dangers of negligent hiring practices.
What is Criminal History?
Criminal history is defined as any past or present convictions that do not have a federal or state exclusion. This means that regardless of state, federal, and local laws, criminal history may still be disclosed in an employment application. In some states, such as Alaska and Florida, criminal history can never be excluded by employers. In most states there are various exclusions that you can use to legally screen applicants with criminal history.
What Are the Most Common Exclusions from Background Checks?
When you run a background check on someone, there are certain kinds of information that you cannot legally use to make hiring decisions. These exclusions vary from state to state—as do many other laws governing background checks—so understanding your state’s laws is crucial. In addition, there are several federal limitations on what you can take into account when performing a background check.
Understanding Negligent Hiring Liability
Negligent hiring is when a company fails to conduct a proper background check on an employee and subsequently hires someone with criminal convictions or arrests that should have prevented them from getting hired. Depending on where you live, it’s possible that your company could be held liable for negligent hiring if you hire an employee who ends up committing crimes against someone.
What Are Some Specific Examples of Criminal History Exclusions?
In general, there are two types of criminal history exclusions: arrest records that did not result in a conviction (also known as non-conviction) and records related to certain specific offenses, including drug crimes, sex crimes, murder or manslaughter. Each state has slightly different rules in terms of which offenses it considers serious enough to warrant disqualification.
Are There Any Other Types of Record Check Ineligibilities?
Yes. You should be aware that there are other types of exclusions that could come up during your background check. For example, if you have been convicted or plead guilty to a crime—or even if you have been arrested but not charged—you may be ineligible for employment in some states.
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