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Background Checks - Consider Pending Cases
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Background Checks - Consider Pending Cases
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As part of a criminal background check, is an employer legally allowed to consider pending cases (e.g., arrests and deferred sentences) that it may deem job-related as part of it's decision regarding
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Forums » Topic Forums » Legal Forum » Background Checks - Consider Pending Cases
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Background Checks - Consider Pending Cases
posted at 8/1/1999 6:06 PM EDT
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Posts: 3
First: 8/1/1999 Last: 8/10/1999 |
As part of a criminal background check, is an employer legally allowed to consider pending cases (e.g., arrests and deferred sentences) that it may deem job-related as part of it's decision regarding placement of employees or to ask a contractor to perform these checks before placing a person at our site? Is this mandated by a state (I am in Ohio) or federal law? If so, where can I find more information on laws mandating this activity? Any help in this matter is much appreciated. |
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Background Checks - Consider Pending Cases
posted at 8/3/1999 2:24 AM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
As a general matter,background checks are governed by state law. State laws generally fall into 3 categories: restrictions on criminal record information applying only to arrest information; restrictions applying only to conviction records; and those applying to both. Arguably, these restrictions are the most compelling in the case of arrests, since there is a presumption of innocence until a person is convicted. (This rationale does not apply to deferred sentences.) Check Ohio law as it applies to your situation. |
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Background Checks - Consider Pending Cases
posted at 8/3/1999 7:06 AM EDT
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Posts: 3
First: 8/1/1999 Last: 8/10/1999 |
Are you saying there are no federal laws pertaining to this? I have checked the Ohio Revised Code and it only references exponged records and juvenile records. Do you know of anything else I should be checking? You mentioned that 'this rationale does not apply to deferred sentences'. What rationale would apply? Are those treated like convictions?
What about the implications of disparate impact according to EEOC case decisions? They seem to consider it 'illegal' to consider arrests in making a hiring decision unless you have a specific business need for doing so and it looked as though it was pretty difficult to prove a business need. Any clarification you can provide would be appreciated. I was a little uncomfortable requesting this of a contractor, if we legally shouldn't be doing this with our own employees. Of course, we are not asking them to make a hiring decision based on this. Just that we wouldn't want them placed at our site. Thanks again for your help in this matter. |
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