Background checks you can’t do

People make mistakes, sometimes little, and sometimes, well, criminal.

When it comes to nonprofit organizations hiring employees, a criminal background can be a serious problem. On one hand, many nonprofits offer some kind of second chance. On the other hand, they must be extremely careful about hiring people with a history of theft or abuse, just to give two examples.

Added to that, several states and the District of Columbia have instituted “Ban the box” legislation, which prohibits employers from asking job applicants to check a box asking if they have ever been arrested.

There are variations throughout the country, but Sandi Pessin Boyd, Douglas B. Mishkin and Jeffrey S. Tenenbaum of Venable LLP have noted that employers in states with the ban may not ask an applicant to disclose an arrest that did not result in a conviction or is not pending.

Further, an employer may withdraw a conditional offer of employment after learning of an applicant having been convicted only for a “legitimate business reason” that takes into account:

  • The specific duties and responsibilities of the position;
  • The bearing of the criminal offense on the applicant’s fitness or ability to perform the job;
  • The time that has elapsed since the offense;
  • The age of the applicant at the time of the offense;
  • The frequency and seriousness of the offense(s); and,
  • Any information provided by the applicant to show the person has been rehabilitated.