NOTE: The COSHRM has made available an 8-page booklet titled “Interviewing & Hiring Applicants with a Criminal Record”. Following is the first installment of extracts from that publication.
A Note Regarding Federal Laws:
From a federal standpoint the Equal Employment Opportunity Commission (EEOC) recommends employers develop hiring policies that allow a company to assess applicants on an individual basis. Employers should be aware that using arrest records in a hiring decision could also violate federal law.
Colorado has several laws that pertain to employment of people with a criminal history.
Colorado Revised Statute $ 2’1-5-101, adopted in order to expand public employment opportunities for people with a background, states: a criminal conviction “shall not, in of itself, prevent the person from applying for and obtaining public employment… “The law also indicates a criminal conviction should not prevent an applicant from applying for or receiving a license, certification, permit, or registration necessary for employment, unless there is a specific statute indicating such.”
In addition, Colorado’s state agencies are not legally allowed to request a criminal background check
until an applicant ls a finalist or there is a conditional offer of employment. After that point, if the applicant is determined to have a criminal history the law directs the state agency to consider the nature of the conviction, the nature of the relationship between the conviction and the position, including whether the conviction was for unlawful sexual behavior and might place a co-worker or the public in a vulnerable position, the time elapsed since the conviction, and information provided by the applicant on behalf of his or her rehabilitation.
The Colorado Legislature has also addressed negligent hiring concerns.
Criminal Background Reports
Criminal background reports are usually obtained from the Colorado Bureau of Investigation (CBI) a division of the Colorado Department of public Safety. A CBI report is a record of fingerprint-supported arrests submitted by law enforcement agencies in Colorado. These reports should include any arrest made in Colorado and the final disposition, or resolution, of any arrest but this may not always be the case.
Criminal background reports are also available from private vendors whose services may include additional background information. private vendors buy database information from 1aw enforcement agencies, courts, and other sources. The advantage to using a private vendor is their reports usually include out-of-state arrest and conviction information.
The disadvantage is that private vendors are largely unregulated. The nonprofit National Consumer Law Center reports that information provided by private vendors may be inaccurate or misleading, and like CBI reports, may not always provide the final disposition of a charge.
Keep in mind that a criminal background record is just one of the tools that an employer uses when making a hiring decision, along with interviewing and checking references.
Most criminal background reports include information about the arrest, charge, date of the offense, and the disposition of the case.
Sometimes there may be several arrests listed, some of which may be multiple listings of the same arrest. Look for the charge date in order to sort these listings out.
If the fina1 disposition for an arrest is not included in a background report, the information may be obtained by calling the court of record.
It is possible that an arrest did not lead to a conviction and the charge was dropped, reduced, or the applicant was found not guilty. This information may or may not be included on the background report.
The best practice is for an applicant to be allowed to explain the circumstances and outcome of any arrest.