Wednesday, November 24, 2004

Does your company have a documented conviction policy?

If your company checks for conviction information on its applicants, you should have a written policy to govern your actions. A written conviction policy will help guide any employees responsible for making employment decisions and help you to remain consistent in the employment decisions you make. What should your policy include? Consider the following:

  • What definition of “conviction” will your company use to consistently apply the policy. For example, a “conviction shall include a plea, verdict, or finding of guilt, regardless of whether senescence is imposed by a court.”

  • How will the company use conviction information? For example: “ the company may consider any conviction as a possible justification for the refusal, suspension, revocation, or termination of employment when it directly relates to the applicant’s possible performance in the job applied for; and, to the employee’s performance in the job the employee holds”.

  • Is the conviction job-related? Your policy should describe the factors you will consider when determining if a particular conviction relates to the ability of your applicant or your employee to perform on the job, such as: the length of time since the conviction occurred; the nature of the conviction; the job and its responsibilities; employment history before and after the conviction; age at the time of conviction; etc. Additionally, your policy should take into consideration a concern for the safety of your employees and those they serve, as well as the public reputation of your company.

  • What records should not to be considered? For example, annulled or expunged records, misdemeanors aged twenty years or more, convictions for which no jail sentence may be imposed under the law (infractions, etc.) should not be considered. Additionally, your policy should address what actions may be taken if an applicant or employee lies regarding a conviction.

  • Several states (such as California) have laws that limit restrict the use of criminal histroy records for employment purposes in a way that is more restrictive than the FCRA. Ask your legal department if any of the states in which you opertate have restrictive laws.

Having a written policy not only guides decision-makers in their actions, but also helps provide justification for decisions made. It is best to consult with your corporate legal department before devising or implementing any important employment policy.


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