Cleared doesn’t imply that it is unseen, and previous doesn’t mean unimportant. This is what HR teams must handle whenever they receive results of background checks showing something that might be considered unacceptable or something from such a long time ago from the applicant’s work history.
The Gray Zone Nobody Talks About
Most compliance training frames criminal history screening like a simple yes-or-no: clean report, make the hire; flagged report, reprocess. Expunged and sealed records mess up those neat binary distinctions. In a perfect world, these records don’t appear on a screening report from a reputable consumer reporting agency, the former should get destroyed, or access to it should get highly restricted, while the latter stays there, out of reach for most members of the public.
The real world is messier. Database records slip through the cracks of sealing and expungement. Data-mining companies lift old, unsealed records before they get deleted. A license applicant submits his or her fingerprints, turning up something that wouldn’t appear in a cursory check. If any of these scenarios take place, you’re the one in the middle. You aren’t legally obligated to ignore that information, but you also can’t use it with impunity. You’re stuck making a judgment call, and those are the calls you don’t want to leave up to someone who hasn’t been trained what to do.
This is not a small-potatoes problem. The EEOC’s 2012 Enforcement Guidance cites Department of Justice stats estimating that 92 million American adults, or one in three, has a criminal record of some kind. That’s not a rare edge case that shows up once in a blue moon to test your judgment. For any substantial organization, that’s routine.
What the EEOC Actually Requires
The EEOC doesn’t ban background checks. It has never done that. It just requests that if you’re going to use criminal history to exclude candidates, the policy needs to be job-related and consistent with business necessity. This is a mouthful that has become somewhat cliché in the realms of compliance presentations. So, what does it actually mean?
It means that you can’t create a blanket rule, for example, “no felony convictions, ever, for any role”, and accomplish an acceptable outcome. Blanket exclusions have a tendency to exclude certain racial and ethnic groups at rates that disproportionately exceed other groups. In legal speak this amounts to disparate impact liability under Title VII, even if the policy isn’t pointing at race and you had absolutely no discriminatory intent when you created it. A policy that on its face is neutral can still be discriminatory if it is not reasonably associated with the actual requirements of the job.
The solution is not to eliminate the practice of checking criminal history. It’s to stop treating every conviction as the ultimate barrier for any candidate, regardless of the job, the industry, or how long ago it happened.
Arrests Are Not Convictions – Full Stop
One important fact that is often overlooked in discussions about hiring: an arrest does not equal a conviction. The EEOC has made it clear that an arrest without a conviction to back it up is not solid proof that an individual participated in any wrongdoing. Charges are filed and then dropped. Cases are thrown out of court. Some are arrested and never formally charged.
Ruling a candidate out based solely on evidence of an arrest is one of the most frequent and most easily rectified non-compliance issues in the recruiting process. If there is an arrest on a print that does not present a disposition, this should prompt a more detailed inquiry, not an automatic shortlisting of the next applicant. The individual may have a legitimate reason, they may have been exonerated long ago, and the system you are obtaining the information from may simply not have been modified to show this.
The Nature, Time, Relevance Test in Practice
Breaking down the concept of individualized assessment into 3 basic questions it actually works from: what happened, how long ago, and does it matter for this specific job.
What happened: This requires you take a good, hard look at the actual offense. The severity and nature of the offense is the first key component of an individualized assessment, and it’s going to vary case by case. A theft conviction and a violent felony shouldn’t be in the same risk category, and if you treat them that way in your policy, you won’t be able to defend any of your actual individual assessments later on.
How long ago: This gets at the age of the conviction. Time is the second key component of an individualized assessment. A conviction from eighteen years ago with a record of stable employment in the interim looks very different from a conviction from eighteen months ago with no employment gap explanation.
Does it matter for the specific job: This is where the “job related” part of the guidance comes in. It’s the third and final component of an individualized assessment. The guidance uses the word relevance and asking if the crime is relevant is asking whether it connects to the job’s duties. A decade-old DUI is going to matter a lot more for a delivery driver and in fact, anyone who operates a vehicle for the company than it is an accountant who will never drive as part of his or her job.
If your policy excludes everyone who ever had a conviction from a job, no matter how long ago, then it doesn’t pass this assessment for any job in the company. A policy like that would be a very good way to end up on the wrong side of an enforcement action.
Why Your Screening Infrastructure Matters as Much as Your Policy
Many HR teams take all of their compliance worries, dump them into the crafting a policy box, and then cheerfully ignore anything they don’t explicitly have to address in their written guidelines. The trouble with that approach is that a policy can be as airtight as a bottle of liquid mercury and still not protect you if your screening source is sloppy or unreliable.
If you use a background screening source that isn’t taking appropriate legal steps to ensure the records it surfaces are both up-to-date and legally permissible for inclusion in a hiring decision, any safeguard that might have potentially protected you goes right out the window in the event of a lawsuit.
And the problem here is that free databases are exactly where bad information like sealed and expunged records tend to recur. Because they’re free. They don’t have to build and maintain an entire legal compliance team and kick the tires on their infrastructure annually like a good consumer reporting agency under the FCRA. They don’t have to update their data daily to comply with the FCRA. This is one of the more practical reasons to route hiring decisions through structured employment background checks rather than piecing together information from scattered public sources. A reputable agency isn’t just faster, it’s built around the same legal framework you’re trying to stay inside of, which means fewer surprises showing up on a report that shouldn’t be there in the first place.
The Adverse Action Process, Step by Step
Even if you have a clean report and legally defensible cause, how you go about rejecting a candidate because of their background matters. The FCRA requires a two-step adverse action process, and failing to follow that process is the single most common technical violation that class-action plaintiffs claim against employers.
Step one is the pre-adverse action notice. Before you finalize your choice, you need to let the candidate know they were going to be rejected because of what was in their background report, provide a copy of the report, and include a summary of their rights. Step two is the waiting period that follows, often starting at five business days, presumably enough time for the candidate to dispute any inaccuracies in the report or offer context. Only once the window is closed can you send the final adverse action notice.
Jump the gun on the final letter or send both bulletins in the same stack of mail, and you’ve given plaintiff’s lawyers a simple, easy claim to file against you, even if there was a legit reason not to hire your applicant. This is a procedural risk, not a substantive one, and it’s an easy one to mitigate. Most employers just get it done by asking their ATS provider to initiate the process automatically.
Ban the Box and State Law: No Single National Policy Works
Federal law provides basic guidelines, but state laws related to fair chance hiring and ban the box are different in every state and even vary by municipality. In some cases, you can’t even ask about criminal history until after you’ve made a conditional job offer. Others limit your ability to consider convictions based on the amount of time that has elapsed since the offense, regardless of the Fair Credit Reporting Act’s standard for how long convictions can be reported. Some states straight out block consideration of certain types of convictions.
If you operate in multiple states, don’t expect one overarching policy to suffice. Build the framing based on the guidance in each state and municipality, because new fair chance legislation is being adopted all the time.
Certificates of Rehabilitation and Other Edge Cases
Certain applicants may bring a certificate of rehabilitation or a formal pardon. These are a legal restoration of rights, and your hiring managers should be able to understand and consider them, rather than disregarding them as meaningless sheets of paper. A candidate who hands one over has completed a legal process that goes straight to the “time” and “nature” prongs of your individualized assessment, it’s evidence you’ll want to take into account.
Expungement doesn’t ensure full invisibility by itself, either. Applicants may choose to disclose old events in interviews. Docket databases from courts not in CRA systems may still be publicly searchable after sealing. Professional licensing boards may have access to files that standard employment screens won’t turn up. None of this means your process is defective, it just means your process must be designed to handle info arriving in non-standard ways.
Document Everything, Apply it Consistently
The best defense HR can have is documentation. Every decision that is made based on an individual’s circumstances should be documented. What the conviction was, how long ago, whether or not it was relevant to the position, whether or not it was interpreted in the individual’s favor, and what business-necessity rationale supported the final decision.
Just like any other litigation, discoverable documentation will be king. Without it, you will likely lose. If two candidates have similar convictions, and one is hired and the other is not, you need a reason based on the individual’s specific circumstances and the business-necessity rationale for the interpretation and how it impacts the job. If you don’t document this, you are hoping that it won’t be asked of you.
Employers who get tripped up rarely do so because they made the wrong call on a genuinely tough case. It’s the ones without a policy at all, who jump back and forth between blanket exclusion and please-answer-my-ad, and who don’t put anything in writing that explains that approach.
This isn’t about compliance versus safety. It’s about building a process that is both specific enough to hold up under a compliance or EEOC investigation and consistent enough to land in the same place every time an old record comes across your desk.
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