By: Judge Ruth B. Kraft, Esq.
A regular question I receive is whether an employer may conduct a criminal background check. The answer is that you must have a business related reason for conducting a criminal background check. Conviction records should be checked when there is a possibility that the applicant could create safety or security risks for coworkers, customers or the public. You may therefore conduct checks, with impunity, of prospective employees who will have contact with minors, the elderly or the disabled; have access to weapons, drugs, chemicals or other potentially dangerous materials; work in or deliver goods to customers' homes; handle large sums of money or valuable items; have access to financial or other sensitive information. That covers a substantial portion of the job market!
If you ask about convictions, orally or in writing, you should make it clear that a conviction does not automatically disqualify the candidate from consideration. If the background check indicates a conviction or if you learn that an already employed individual has been convicted of a crime, you should conduct an individualized assessment before making a decision with respect to whether to hire or fire the worker.
Also, and I cannot emphasize this enough, if you do perform backgrounds checks, do not hire the applicant until you have reviewed the results!!! Otherwise, you risk an "estoppel" argument that you have waived the right to discharge based upon those results and you may be vulnerable to negligent hiring claims by third persons who will allege that you knew or should have known about a person's potential threat to others.
For additional information on this topic, assistance with a background check contact Jennifer Kirschenbaum, Esq. at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.