Why Verified First Does Not Report Non-Conviction Information

At Verified First, we are committed to providing our clients with accurate and compliant background screening services that support fair hiring practices and mitigate risk. With this commitment in mind, and based on the advice of our legal counsel and industry best practices, we maintain a policy of not reporting non-conviction information to our clients.

This policy is rooted in the understanding that using non-conviction information, such as dismissed cases or arrests not leading to conviction, in hiring decisions can expose employers to significant legal challenges. There has been a notable increase in litigation, with candidates filing lawsuits against employers alleging discrimination based on information that does not reliably indicate a propensity for relevant misconduct and can have a disparate impact on protected groups. 

The most significant legal risk associated with using criminal history information, especially arrest records, is liability under Title VII of the Civil Rights Act of 1964 for disparate impact discrimination. National data consistently shows that individuals from certain racial and ethnic minority groups, particularly Black and Hispanic individuals, are arrested and convicted at rates disproportionately higher than their representation in the general population. Consequently, employer policies that exclude applicants based on criminal history, even if applied neutrally, are likely to disproportionately screen out members of these protected groups

Our approach aligns with the guidance from key regulatory bodies and industry associations:

• EEOC Best Practices: The U.S. Equal Employment Opportunity Commission (EEOC) has long advised caution regarding the use of criminal history information in employment. Their guidance, notably reinforced in April 2012, distinguishes between arrest records and convictions, emphasizing that an arrest does not constitute proof of criminal conduct. The EEOC guidance discourages blanket exclusions based on criminal history and promotes individualized assessments when considering conviction records. The factors recommended for an individualized assessment, which allow employers to consider the totality of circumstances and their business necessity, include:
  
  
  • The facts or circumstances surrounding the offense or conduct;
  • The number of offenses for which the individual was convicted;
  • Age at the time of conviction, or release from prison;
  • Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
  • The length and consistency of employment history before and after the offense or conduct;
  • Rehabilitation efforts, e.g., education/training;
  • Employment or character references and any other information regarding fitness for the particular position; and
  • Whether the individual is bonded under a federal, state, or local bonding program.

• EEOC Guidance: The EEOC's 2012 Guidance draws a sharp line between arrests and convictions:
  • Arrests: The EEOC states unequivocally that an employer policy or practice of excluding applicants based solely on an arrest record is not job-related and consistent with business necessity and violates Title VII. While an employer may make an employment decision based on the conduct underlying an arrest, this requires further inquiry to determine what conduct actually occurred and whether that specific conduct makes the individual unfit for the particular position. The focus must be on the relevant conduct, not the arrest itself.
  • Convictions: While convictions are proof of conduct, their use in hiring decisions must still meet the "job-related and consistent with business necessity" standard. The EEOC recommends achieving this through a targeted screen considering the Green factors (nature/gravity, time passed, job nature, noted above) coupled with an individualized assessment.

The use of non-conviction records, therefore, represents a significant legal vulnerability. The EEOC's clear stance that arrests do not equate to guilt , combined with documented racial disparities in arrest rates and the increasing number of state and local laws prohibiting the use of non-conviction records, makes relying on such information extremely risky. It creates a direct pathway to disparate impact claims under Title VII and potential violations of specific state statutes.

• PBSA Best Practices: The Professional Background Screening Association (PBSA), also supports the practice of excluding non-conviction information from background reports. This is considered a best practice within the industry, reflecting a commitment to legal compliance, promoting fair hiring, and providing clients with information that is most relevant and permissible for employment decisions. Many state laws also restrict the reporting and use of non-conviction records.  

Verified First’s fundamental principle behind not reporting non-convictions is to prevent the unintentional misuse of potentially prejudicial information. As the saying goes, you cannot "unsee" information once it is presented. By not reporting non-convictions, we help our clients avoid having access to information that they should not legally or ethically use in their hiring decisions, thereby significantly mitigating the risk of discrimination claims and litigation.

We believe that this policy is a crucial element in facilitating a fair hiring process and protecting our clients from unnecessary legal exposure.

Important Consideration: While Verified First does not report non-conviction information, we cannot provide legal advice. We strongly recommend that you consult with your own legal counsel to determine the appropriate steps when making adverse action decisions based on information legitimately obtained through the background check process, and to ensure compliance with all applicable federal, state, and local laws, including the Fair Credit Reporting Act (FCRA) Adverse Action process.

Links 

Arrest and Conviction Records: Resources for Job Seekers, Workers and Employers | U.S. Equal Employment Opportunity Commission https://www.eeoc.gov/arrestandconviction

EEOC Guidance on Employers' Use of Arrest and Conviction Records https://cms6.revize.com/revize/waterloo/Fair%20Chance%20Initiative/Compliance%20Overview%20-%202012%20EEOC%20Guidance%20on%20Employers%20Use%20of%20Arrest%20and%20Conviction%20Records.pdf 

EEO Enforcement Guidance: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/TEGL_31_11_att4.pdf

The information and opinions expressed are for educational purposes only and are based 
on current practice, industry related knowledge and business expertise. The information
provided shall not be construed as legal advice, express or implied. 

If you have any further questions, or need a product enabled on your account, 
please contact Verified First Client Services for assistance.

Call 844-709-2708 or email clientservices@verifiedfirst.com