Onboarding new employees is an exciting time for most companies. One aspect of the hiring process—conducting criminal background checks—can be a daunting experience. To succeed on the road to criminal background check success, HR professionals need a roadmap (Equal Employment Opportunity Commission guidance) and a compass (Fair Credit Reporting Act guidance). These tools, in conjunction with counseling from your employment attorney, will help you successfully navigate the criminal background check process.

Before conducting a third-party criminal background check, the Fair Credit Reporting Act mandates that you take three preliminary steps. Under the federal FCRA, you must: (1) Send the applicant or employee an FCRA-compliant Disclosure and Authorization form; (2) Obtain their written consent; and (3) Complete the consumer reporting agency's certification form and provide it to the consumer reporting agency. This form requires you to certify that you have complied with the FCRA disclosure requirements; will comply with the FCRA's adverse action requirements should the results lead to an adverse employment action; and will not use the information provided by the consumer reporting agency in a way that violates equal employment requirements.

It is not always obvious what employment decision should be made when a criminal background check report indicates that the applicant or employee has a past arrest or criminal conviction. The Equal Employment Opportunity Commission guidance addresses consideration of criminal history information results when the results have a disparate impact on applicants and employees on the basis of race. The EEOC has observed that certain populations are arrested and convicted at a disproportionate rate in the U.S. As a result, even a facially-neutral practice of categorically disqualifying applicants who have a criminal record, may have the effect of discriminating against certain minorities.

Here is a quick checklist regarding employer restrictions and employee protections:

Do not consider arrest records. EEOC guidance strongly cautions against the use of arrest records in making employment decisions. Accordingly, adverse employment decisions (e.g., refusals to hire or terminations) should not be based on an applicant or employee's arrest record. An applicant's past arrest is insufficient evidence to support a finding that the applicant actually engaged in the conduct in question.

EEOC guidance does, however, allow you to make an adverse employment decision on the conduct that led to the arrest if the conduct "makes the individual unfit for the position in question." Practically, you typically have limited access to information concerning the validity of an arrest. This reality, coupled with the EEOC's strong caution against the use of arrest records in hiring and employment, position you to not rely on arrest records in employment decisions. State laws may expressly forbid the use of arrest records as well.

Additionally, the FCRA does not authorize the release of arrest information dating back more than seven years from the time of the application or background check request for purposes of jobs that pay less than $75,000 annually. Your organization will run afoul of the FCRA if you consider arrests beyond seven years.

Conviction records can be taken into account where appropriate. You have much more flexibility under EEOC guidance to consider an applicant's or employee's conviction records. According to the EEOC: "a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas." Unlike arrests, the FCRA imposes no time limitation on records of criminal convictions.

Even with more leeway, employers should consider the following to limit liability associated with employment decisions based on convictions: First, do not ask about convictions on job applications. Most courts have embraced the EEOC's guidelines in ruling that you should not ask about criminal conviction history on job applications. Instead, it is safest to inquire about an applicant's criminal history later in the hiring process—typically after extending a conditional offer of employment. Second, consider convictions only if "job related" and "necessary for business." If your selection criteria relating to conviction history have a statistically significant disparate impact on individuals of a certain race, the criteria will likely be deemed to violate Title VII unless they are "job related and consistent with business necessity." This determination involves, in part, factors such as: a) the nature and gravity of the offense or offenses; b) the time that has passed since the conviction and/or completion of the sentence; and c) the nature of the job held or sought and how it relates to the type of crime committed.

Your company should develop a targeted screening process for individualized consideration of whether the screen is job-related and consistent with business necessity. While individualized assessments are not required for Title VII compliance, they can help minimize Title VII claims. Overall, these are a few best practices for using criminal arrest and conviction information in the employment context:

Eliminate policies or practices that categorically exclude people from employment based on the mere existence of a criminal record.

Develop a narrowly tailored, written procedure for screening applicants and employees for criminal conduct.

Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.

Document the reasons for not selecting certain candidates based on screening factors or individualized assessments.

Bethany Salvatore is a member in Cozen O'Connor's Pittsburgh Labor & Employment group. Bethany is an employment litigator who focuses on protecting companies' best interests. Bryant Andrews is a Cozen O'Connor Labor & Employment associate.