Your Job Candidate Has a Criminal History: Now What?

So your candidate has a criminal history…now what???

According to the BJS (Bureau of Justice Statistics), almost one third of Americans have a criminal history on file. What do you do when your applicant’s background report comes back with a record? Here are some key points to keep in mind when addressing each criminal record.

Using a Hiring Model or Pattern and Stick with It:

This is an option that helps you mold the position you are hiring for. For example, if you are hiring for a position that handles money on a regular basis you will take into consideration any theft charges, but maybe not a DUI. However, if you are hiring for a driving position the same DUI charge will be taken into consideration.

Whatever your model may be, the key here is consistency. This will help to standardize your hiring process. 

Individual Analysis and Compliance:

Employers should look at every record individually and decide their plan of action. There are three main factors to consider when looking at a record. According to the Equal Employment Opportunity Commission (EEOC), “When a background check reveals that a candidate has a record, employers should review the EEOC guidance to ensure that the 1. nature and gravity of the offense are taken into account along with 2. the time that has passed since the conviction and the 3. nature of the job held or sought.”

There are other factors that your company can look at if you wish, however these are the most common. This process should be reviewed on a regular basis depending on your screening and hiring needs.  Additionally, both municipality and state laws vary as to when employers can ask about criminal history. There have been many laws enacted regarding “ban-the-box” that apply to both public and private employers. Just recently, President Obama enacted a new ban the box movement on federal job applications.


This is a small step to take but a very important one that can save your company trouble. If you deny an applicant a job based on the information returned on the applicants’ background check, you must provide adverse action notifications per the Fair Credit Reporting Act (FCRA). Your duties under the FCRA are as follows:

  • Provide a Pre-Adverse Action Notice: If you plan to take adverse action on the basis of your findings in the background report, you are required to provide a pre-adverse action notification to the affected individual BEFORE the action is taken and offer a reasonable amount of time for the individual to respond. You must send a copy of their background report and a summary of their legal rights.


  • Provide an Adverse Action Notice: After you have decided not to hire someone because of finding in their background check and you have provided a pre-adverse action notification, you will need to provide oral or written notification that the action has taken place. You must allow a reasonable amount of time for the individual to respond before providing an Adverse Action notice.


Accredited background screening companies make every reasonable effort to deliver accurate reports. In the event that an applicant identifies a discrepancy in their report, the applicant has the right to file a dispute with the screening company directly. The screening company will then contact their client that the applicant as initiated a dispute. The FTC requires that all disputes are re-investigated. MBI takes all disputes very seriously and processes them as efficiently as possible. 

**Please contact MBI Worldwide if you have any questions regarding Ban-the-Box, Adverse Action, or Dispute processes at 888-896-5735 or

Written by M. Moyers