Properly screening job candidates is an important part of a hotel manager’s duties, and we all want to make sure we hire the right person for the job.  If conducting criminal background checks, driving records, or credit history is part of that process, employers should take care to make sure they are following applicable laws, properly obtaining job applicants’ permission, and avoiding potential discrimination.

Background checks are regulated by federal law.  The Fair Credit Reporting Act (FCRA) applies to most background checks conducted via third party services, and employers must comply with the FCRA’s regulations on point.  

You must inform the applicant that you will be conducting a background check, and also get the applicant’s written permission.  The FCRA requires an employer to give written notice that a credit or background check will be done, and also get written authorization from an applicant to do the check.  The notice and the authorization can be on the same form. Contact us if you would like a sample form.

Turning down an applicant due to information learned from the background check triggers a requirement to provide no

tice.  If the applicant is turned down, the employer must tell the applicant why, give the applicant a copy of the report, and let the applicant know the name and address of the service that furnished the information.  Also, it is a good idea to candidates a chance to rectify or explain incorrect information.

Wait to ask about criminal history until you make an offer of employment.  If possible, it is a best practice to not ask about criminal history until a tentative offer of employment has been made.  This will lower the risk of discrimination based on criminal history.

Do not ask about arrests.  The Equal Employment Opportunity Commission (EEOC) and the courts consider asking about arrests to have a disparate impact on minorities.  Instead, the employer should ask about convictionsand pleas of guilty or no contest. If an EEOC claim is filed, the employer must be prepared to show how the criminal record was relevant to the job in question.

Here is a good sample question: During the past 10 years, have you been convicted of, or have you pled guilty or no contest to, a felony offense? If yes, please explain in the space below. Note that answering “yes” to this question will not automatically bar you from employment.

Focus on relevant convictions. Consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm.

Be consistent with your policies and how you handle the information you obtain.  Apply the same background check process to every candidate. Employers should also be careful to avoid using a

policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and doesn’t accurately predict who will be a responsible, reliable, or safe employee.

Have questions?  Contact a THLA attorney:   | 512-474-2996