Defensible decisions: Balancing employer and prospective employee rights in an era of criminal background checks

Employers using criminal background checks to make hiring determinations must carefully balance the need to protect themselves and their clients against legal mandates designed to protect the rights of individuals with criminal records. Yet, surprisingly little research examines this balancing act. The purpose of this paper is to examine how one large agency, the New York Department of Health (DOH), navigates a myriad of mandates to convey and create legitimacy in compliance with complex legal mandates and contrasting interests.

Prior research on civil right legislation suggests that while companies may create regulations that appear to comply with such mandates, their actual practice does not always comply with their own rules (Dobbin et al., 1988). Therefore, this study addresses two key questions: do the DOH policies appear to comply with the relevant New York State law and does the DOH effectively implement the policies in a way that upholds New York State law. Specifically, this study estimates probit models on a sample of over 7,000 potential employees with criminal records to determine compliance with the criteria established by law and policy.

Findings show that the variables indicated by law/regulations such as offense severity and time since conviction work in the intended direction. Using only these criteria the models are able to correctly predict clearance decisions approximately of the time and that extra-legal factors such as race and gender do not further influence final determinations.

These findings have practical implications for employers as they show that it is possible for employers to design formal rules that navigate this complex landscape while still opening up employment opportunities for individuals with criminal records.

This is important as many employers either utilize criminal background checks without regulation or are fearful of embarking on efforts to meet regulations such as those promulgated by the EEOC. This research is the first of its kind to actually document and explore the ability of a large employer to conduct socially responsible criminal history background checks.