When it Comes to Criminal Background Checks, Honesty is the Best Policy (For Employers Too!)
By Ruder Ware Alumni
October 28, 2015
Last week I was asked to present, along with a panel of attorneys, to a group of law students. For a group of students facing a tough job market, the most common theme of the discussion related to the hiring process and how these students could maximize their likelihood of landing a job. The panel’s message was simple – honesty is the best policy. When interviewing for a job, candidates are asked questions about their skills, their likes/dislikes, and their personal history. In every situation, it behooves the candidate, and the employer, for the candidate to answer honestly. This message, honesty is the best policy, is no more true than when an employer asks about a candidates criminal background.
Lying on your application about your criminal history can get you out of the running before much consideration is given to the rest of your qualifications. Eliminating the pool of applicants for an open position is often an overwhelming and tedious task. Some of the easiest applications to toss aside are those that contain lies or misinformation from an applicant. With the help of CCAP, many companies are quickly able to detect an applicant who has lied about whether or not they have been convicted of a crime in the past five years. When the company finds an applicant who has lied or omitted the truth, the law supports the decision to deny hiring the candidate. So it is easy to see why honesty is always the best policy for applicants to a position.
The flip side of this scenario, and the thing that employers tend to have trouble with, is that it is also always in the best interest of the employer to honestly communicate with an applicant the reasons for not hiring him or her. I am currently working with a client who denied an application because the criminal background check revealed two things: (1) that the applicant lied on his application; and (2) that the crimes the applicant was convicted of substantially relate to the position he was applying for. The employer appropriately denied the applicant employment for these reasons; however, when it sent a letter communicating the reasons why the applicant was not hired, it did not clearly state that the applicant lied about his criminal background and that the background check revealed the applicant was convicted of a crime that substantially related to the position he was applying for. The letter simply stated that a background check revealed that the applicant was “not a good fit” for the employer. This is a problem.
In Wisconsin, employers, generally, may not discriminate against an applicant based on his or her arrest and conviction record. Employers may, however, deny employment to an applicant because he or she lied on their job application or because they have been convicted of a crime that substantially relates to the position they are applying for. This is not a new revelation in the law. It is the framework within which many employers are very comfortable. For some reason though, employers have difficulty being brutally honest with applicants who have not been selected for a position because they’ve lied or because their criminal conviction record substantially relates to the position they are applying for. Employers need to be told the same message that the panel shared with the law students – “Honesty is the best policy.” When an employer conducts a lawful background check and appropriately assesses the results, it needs to “tie the loop” and clearly communicate with the applicant the decision it made. If it doesn’t, the employer risks unnecessary litigation that starts with the employer behind the eight-ball.
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The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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