Member Login

In a corporate situation, an employer would be willing to hire employees with zero criminal history in order for him to protect his assets and the company. According to a news source, company theft and embezzlement costs companies in the US several grand of dollars every month and that in 2005, it even reached millions in a year. These losses are the things being anticipated by employers to avoid thus they reserve the right to screen employees to their Human Resource representatives. The main thing idea that is used by many HR officers today is that, when a person has a criminal history or a conviction, he might not be a good candidate for a job as he may do the same crimes again. This is what moves HR officers to use background check procedures.

However, a New York lawyer has pointed out that there is now a new law on background checking. This law is involved in the using of criminal history extracted from a background check procedure to refuse or defer an application. According the said lawyer, a background check is good to be used to determine whether an applicant is capable to do the job and better factor whether there are illegalities in the previous hiring that could be avoided. But the lawyer, Andrew Kimler, firmly said that companies cannot just simply use criminal history as a plain ground to disqualify an applicant. New York law states that it is illegal to refuse an application based solely on the criminal history and not on the relevant of the said criminal history to the job. But this law also clearly emphasized that employer may have the right to shun off any application after finding that the criminal history has something to do with the job being applied for. Say for example, a man applying to become a school bus driver may have been convicted of DUI or several traffic violations resulting for his license to be suspended. In the example, since a man is trying to apply for a driving position and his previous records showed violations relevant to the job, an employer may have the right to decline applications for legitimate reason.

Another thing that should be considered in declining an application due to criminal histories as extracted from background checks is the time of the conviction. Federal laws are clear in saying that 7 years is the time allotted time frame in order for the criminal records of a convict is expunged. Meaning, the sentence can no longer be used to challenge a person’s right to employment. Other employees may also look into the possibility of clearing the applicants criminal history according to the time served in corrections.

But until this time, lawyers still are not positively sure whether this law would help a former convict win a discriminative hiring case. There are still a lot of things to be proven here and often times the applicant with criminal history will have hard time to prove to courts that his intention for employment is pure.

That the law itself is seen as a protection both for the employer hiring and the applicant with criminal history seeking to be hired, it is nonetheless on the part of the employer to deem the appropriateness of their hiring process, without disregarding the law and conscience.