Don't ask prospective employees about criminal convictions until after a...

Don't ask prospective employees about criminal convictions until after a conditional offer of employment is made, experts say. Credit: Getty Images/iStockphoto / thomaguery

Many employers use background screening to vet prospective employees.

In fact, 89 percent of companies conduct employment background checks, and 80 percent of the time these checks uncover issues and information they otherwise wouldn’t have found, according to a recent report on background screening trends and best practices by Sterling Talent Solutions.

Still, background screening laws can be complex, which is why 25 percent of survey respondents cited ensuring they are complying with ever-changing screening laws as their second biggest screening challenge.

Making it even more tricky is the fact that laws vary depending on where you are hiring, says Clare Hart, CEO of Manhattan-based Sterling Talent, a provider of employee background screening services.

This means “employers need to understand the compliance requirements at the federal, state and sometimes local level,” she says.

For example, New York City employers are restricted by law from asking about an applicant’s criminal history until after a conditional offer has been made. But that is not the case on Long Island, says David Mahoney, a partner and member of the labor and employment law group of Jericho-based SilvermanAcampora LLP.

Still, legislation like the law in New York City is gaining momentum nationally, which is why Mahoney doesn’t recommend that employers even on Long Island ask about criminal convictions before a conditional offer of employment is made.

These laws are in place for a reason, says Catherine Aldrich, vice president of operations at HireRight, an Irvine, California, employment screening provider. They’re designed to ensure that a candidate is not eliminated from the hiring process just because he or she has a criminal background, which may have no bearing on the job, she says.

“Any employer who is looking to use a criminal conviction as the reason it doesn’t hire a job applicant must be prepared to defend that decision and explain why a criminal conviction should disqualify the applicant from performing that job,” says Mahoney.

Even outside of New York City, the New York Correction Law, which applies to Long Island, generally bars employers from posting job solicitations that either require applicants to have no criminal history or a clean background, he says.

So you have to tread carefully, and it seems employers are.

This year only 48 percent of organizations reported asking candidates to disclose criminal records early in the application process, when just two years ago that number was 76 percent, says Hart.

As a general recommendation, employers are advised to review the U.S. Equal Employment Opportunity Commission and Federal Trade Commission guidance on background checks; find it at

One key requirement to be cognizant of is that employers must obtain a signed authorization form from the candidate prior to ordering a background check, says Aldrich.

“We’ve seen employers sued for non-compliance for not giving the right forms,” she says.

All employees have the right to be given the results of their background check as well, she says, noting there is a specific process an employer must follow if a background check results in not hiring the candidate.

For one, an employer must provide the applicant notice of the adverse action (ie. the decision to not hire the person) and other information that allows the applicant to see the basis of that decision, says Keith Gutstein, a partner at the Woodbury law firm of Kaufman Dolowich & Voluck.

The applicant also has the right to contact the agency that did the report, and the employer must provide the name and phone number of the agency to the applicant, he says. The applicant then has the right to dispute the agency’s finding with the agency, he says.

Be careful not to deny employment based solely on a criminal conviction, he says. The New York Correction Law requires a further analysis to be done before making an adverse employment decision, says Gutstein.

“You have to figure out, Would hiring this applicant pose an unreasonable risk to property or people?” he says. “Does the conviction bear a direct relationship to the job?”

Social screening


Percentage of employers who say they perform social media checks on prospective employees.

Source: Sterling Talent Solutions

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