Changes to the regulations governing inquiries into a job applicant’s criminal history go into effect on October 1, 2023. The rules apply to new applicants, as well as existing employees who are either applying for a different position or are subject to a criminal history review because of a change in ownership, management, policy, or practice. Most employers are already aware that they may only inquire into an applicant’s criminal history after making a conditional offer of employment, and that they must conduct an individualized assessment before rescinding a job offer based on the results of a background check. The new regulations make clear that employers must conduct the individualized assessment before making a preliminary decision to rescind an offer of employment. They also expand on the factors that employers may consider when making an individualized assessment. For example, employers should consider factors such as whether the applicant had a disability or experienced trauma, domestic or dating violence, assault or stalking, human trafficking, duress or other similar factors that may have contributed to the offense. The employer must then consider the applicant’s rehabilitation or evidence of mitigation. Specifically, employers may look at the following factors, among others, to determine whether the individual has been rehabilitated: - if the conviction resulted in incarceration, the applicant’s conduct during incarceration and whether they participated in work and educational programs;
- the applicant’s employment history since the conviction or incarceration;
- the applicant’s community service and engagement since the conviction, such as volunteer work with community or religious organizations; and
- if the individual was previously impaired by a disability or substance addiction, whether the disability or substance addiction has been mitigated, and the likelihood of harm in the future.
While an employer may consider these factors, it may not require an applicant to submit information regarding rehabilitation or provide a specific type of evidence. Likewise, employers may not require applicants to disclose their status as survivors of domestic or dating violence, sexual assault, stalking or similar status, or the existence of a disability. Employers must, however, accept and consider evidence voluntarily provided by the applicant as part of the individualized assessment. Importantly, if an applicant voluntarily provides information about their criminal history before a conditional offer is made, the employer may not consider the information until after it has decided whether to make a conditional offer of employment. The regulations also make clear that employers must not include a statement in their job ads or postings that applicants will not be considered if they have a criminal history. The rules do not apply to employers and other covered entities that are required by law to conduct background checks. Laws that require entities other than the employer to conduct a background check (such as an occupational licensing board) do not exempt employers from these regulations. Finally, employers may use IRS Form 8850 to pre-screen and make a written request to their state workforce agency (SWA) to certify an individual as a member of a targeted group for purposes of qualifying for the Work Opportunity Tax Credit as long as the information from the form is used solely to apply for the Work Opportunity Tax Credit. Employers should ensure that all recruiting, hiring and human resources personnel are fully and properly trained on these new mandates. Reprinted with permission from Scott & Whitehead. | 
