Can fire and medic applicants be asked if they have a criminal history?
The 'Ban the Box' campaign, as well as EEOC guidance, needs to be considered when asking applicants to disclose criminal convictions
By Margaret Keavney, Esq., CACO
In EMS, we occupy a position of trust with the general public. We go into people's homes, we help them when they are unconscious and at their most vulnerable. For this reason, many employers want to vet their applicants to make sure that they do not have a criminal history.
We would not want to put someone in a patient's home if they have already violated the trust of an employer or the public by stealing, cheating or assaulting someone.
According to a Society for Human Resource Management survey, 92 percent of employers said they do background checks on applicants. However, several states have made it against the law to ask about an applicant's criminal record at the start of the application process.
The national campaign to Ban the Box, seeks to get states to enact laws to prohibit a checkbox on applications for someone to indicate they have a criminal conviction. The laws do not prohibit considering a person's past crimes. Instead, they require employers to consider an applicant's qualifications first, and then weigh whether the crimes affect their ability to do the job.
In addition, the U.S. Equal Employment Opportunity Commission, an office within the Department of Labor that fights employment discrimination, has adopted guidelines for employers about how and when to ask applicants about criminal convictions.
The EEOC is currently prosecuting cases against Dollar General and BMW, claiming that their practice of running criminal record checks on applicants is unlawful and discriminatory. Specifically, the EEOC alleges that the use of criminal background checks has a disparate impact on African-American job applicants.
Understanding Title VII
Not all cases of this type have been successful, but the EEOC will continue to press on this issue. A fire department may still win a case in court if EEOC doesn't like its policy, but only after months and years of depositions, records requests and legal fees.
The federal law at issue is Title VII of the Civil Rights Act, which prohibits employment discrimination. But it doesn't outright prohibit background checks; it requires employers to do a balancing act between their safety concerns and the likelihood of an applicant’s risk.
On the one hand, the EEOC recognizes that "Employers have reported that their use of criminal history information is related to ongoing efforts to combat theft and fraud, as well as heightened concerns about workplace violence and potential liability for negligent hiring. Employers also cite federal laws as well as state and local laws as reasons for using criminal background checks."
On the other hand, the EEOC will find fault with an employer for applying a blanket denial to applicants without a targeted or individualized review of convictions, even when such action is required by state law.
Federal law requirements for background checks are exceptions to Title VII, but state and local requirements are not exceptions.
How it applies
According to the EEOC and case law, "Title VII requires employers to justify criminal record exclusions by demonstrating that they 'accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.'"
In order to exclude an individual for employment at your agency, you have to determine if their specific crime is relevant to your concerns about risks in their particular position. So, the analysis may be different for an administrative assistant, a mechanic, dispatcher or a firefighter-EMT.
There are three factors to consider.
1. The nature and gravity of the offense or conduct.
Offenses that involve violence to vulnerable people or dishonesty weigh heavier than technical violations or other non-violent crimes.
2. The time that has passed since the offense, conduct and/or completion of the sentence.
A crime committed last year shows the applicant recently made a bad decision. A crime committed 10 years ago is not as good an indication of who the applicant is today.
3. The nature of the job held or sought.
Look at both the circumstances under which the job is performed, like level of supervision, or interaction with vulnerable people and the environment where the job is done, like in the patient's home or in the office. Obviously, the jobs of EMT, paramedic and nurse are very sensitive with very little supervision, which gives employers more leeway to weigh the conviction than those hiring a cook at a restaurant or a farm worker.
As you can see, even employers in states that do not prohibit the practice outright in a statute should evaluate whether they want to change when they ask criminal history questions, because federal and state agencies may use the general anti-discrimination laws to enforce a ban anyway.
13 best practices
The EEOC suggests these best practices for employers who are considering criminal record information when making employment decisions.
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored, written policy and procedure for screening applicants for criminal conduct.
- Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials and decision makers on how to implement the policy and procedures consistent with Title VII.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants' and employees' criminal records confidential. Only use it for the purpose for which it was intended.
About the author
Margaret Keavney, JD, MHA, CACO, is a partner with the New Jersey law firm Keavney & Streger, providing counsel to EMS agencies on employment law issues, compliance, HIPAA, and regulatory issues. For more information, visit the NJEMSLaw website and connect with Ms. Keavney on Facebook or follow her on Twitter @keavneylaw.