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The Truth About Criminal Record Checks: Do All Employers Check a Candidate’s Criminal Record?

ByDave Stopher

Mar 27, 2024

Candidates often wonder about the extent to which their past may impact their future employment opportunities. One common concern is whether all employers conduct criminal record checks as part of their hiring process. The truth is, that while criminal record checks have become increasingly prevalent in certain industries and for specific roles, not all employers choose to implement them universally.

 

In this blog, we’ll explore the reasons behind criminal record checks, industries where they are most common, legal considerations and whether all employers check a candidate’s criminal record.

Understanding Criminal Record Checks

 

Criminal record checks, also known as background checks or screenings or DBS Checks, involve reviewing an individual’s criminal history to assess their suitability for employment.

 

These checks are typically conducted by employers to ensure the safety and security of their workplace, clients and assets. The process may involve accessing databases maintained by law enforcement agencies to identify any past convictions, cautions or pending charges.

Reasons for Conducting Criminal Record Checks

 

Employers may choose to conduct criminal record checks for various reasons, including:

Safety and Security

 

Employers have a duty to provide a safe and secure workplace for their employees and clients. Conducting criminal record checks helps mitigate risks associated with hiring individuals with a history of violent or dishonest behaviour.

Regulatory Compliance

 

In certain industries, such as healthcare, education, finance and childcare, employers may be legally required to conduct criminal record checks as part of their hiring process. This is often mandated by regulations designed to protect vulnerable populations or sensitive information.

 

Client or Contractual Requirements

 

Some clients or contracts may require employers to conduct criminal record checks on employees as a condition of doing business. This is particularly common in industries that involve working with government agencies, defence contractors or other highly regulated entities.

Risk Management

 

Employers may use criminal record checks as part of their risk management strategy to identify and mitigate potential liabilities associated with hiring individuals with a history of criminal behaviour.

Industries Where Criminal Record Checks Are Common

 

While criminal record checks are not universally required by law, they are more common in certain industries and for specific types of roles. Some industries where criminal record checks are commonly conducted include:

Healthcare

 

Hospitals, clinics and other healthcare providers often conduct criminal record checks on employees who have direct contact with patients to ensure patient safety and regulatory compliance.

Education

 

Schools, colleges and universities may conduct criminal record checks on employees, particularly those who work with children or vulnerable adults, such as teachers, coaches and counsellors.

Finance and Banking

 

Financial institutions may conduct criminal record checks on employees who have access to sensitive financial information or who are responsible for handling money, such as bank tellers, financial advisors or investment managers.

 

Government and Law Enforcement

 

Government agencies and law enforcement organisations typically require employees to undergo extensive background checks, including criminal record checks, as a condition of employment.

Childcare and Social Services

 

Organisations that provide childcare, foster care or social services may conduct criminal record checks on employees who work with children or vulnerable populations to ensure their safety and well-being.

Legal Considerations and Restrictions

 

While employers have the right to conduct criminal record checks, they must do so in compliance with applicable laws and regulations. In many jurisdictions, there are legal restrictions on the use of criminal record information in hiring decisions to prevent discrimination and ensure fairness. Some key legal considerations include:

 

Ban the Box Laws: “Ban the Box” laws prohibit employers from asking about an applicant’s criminal history on job applications or during the initial stages of the hiring process. These laws are intended to give individuals with criminal records a fair chance at employment by delaying inquiries about their criminal history until later in the hiring process.

 

Fair Credit Reporting Act (FCRA): The FCRA imposes strict requirements on employers who use third-party consumer reporting agencies to conduct background checks, including criminal record checks.

 

Employers must obtain the candidate’s consent before conducting a background check, provide a copy of the report if adverse action is taken based on the results and give the candidate an opportunity to dispute inaccurate or incomplete information.

 

Equal Employment Opportunity Commission (EEOC) Guidelines: The EEOC provides guidelines to employers on how to use criminal record information in a manner that is consistent with anti-discrimination laws.

 

Employers must conduct individualised assessments of candidates with criminal records, considering factors such as the nature and gravity of the offence, the time elapsed since the offence, and the relevance of the offence to the job in question.

Do All Employers Check a Candidate’s Criminal Record?

 

While criminal record checks are common in certain industries and for specific roles, not all employers choose to conduct them as part of their hiring process. The decision to conduct a criminal record check depends on various factors, including the nature of the job, industry regulations, client requirements and the employer’s risk tolerance.

 

Smaller businesses, like Funky Socks, or startups may be less likely to conduct criminal record checks due to resource constraints or a focus on other priorities. Additionally, some employers may prioritise qualifications, skills and experience over a candidate’s criminal history, particularly if the offence is unrelated to the job or occurred in the distant past.

 

However, for positions that involve working with vulnerable populations, handling sensitive information, or posing significant risks to the organisation or its clients, criminal record checks are more likely to be standard practice.

Conclusion: Balancing Safety, Compliance, and Fairness

 

While criminal record checks are an important tool for employers to ensure the safety and security of their workplace, they are not universally required or conducted by all employers. The decision to conduct a criminal record check depends on various factors, including industry regulations, client requirements and the nature of the job.

 

Employers must conduct criminal record checks in compliance with applicable laws and regulations, including “ban the box” laws, the Fair Credit Reporting Act and Equal Employment Opportunity Commission guidelines.

 

By balancing safety, compliance and fairness, employers can make informed hiring decisions that protect their organisation while providing opportunities for individuals with criminal records to reintegrate into the workforce and contribute positively to society.