Geared Up Issue 1 2015 | Page 35

Not necessarily. Generally speaking, state law and the Equal
Employment Opportunity Commission (EEOC) require employers
to consider: 1) The nature and gravity of the crime; 2) The time
that has passed since the crime or conviction; and 3) The nature
of the job held or sought. While you might have heard of rules of
“three years for misdemeanors”and“seven years for felonies,”in
fact, there are no such hard rules. For example, for a trainer who
will not be expected to drive as part of his job, even a felony DUI
would likely not be a legally-justified bar to employment, even if
he was released from prison just days ago. Conversely, a misdemeanor conviction for check fraud might be sufficient reason
not to hire an accountant who will be making cash deposits and
writing checks for your business, even if the crime occurred more
than three years ago. Each case should be looked at separately,
keeping in mind that some“convictions”may not be held against
the applicant because of first offender treatment, the conviction
was expunged, the applicant was pardoned and so forth.
Keep in mind that even if the fact of the conviction cannot
be a basis for disqualification, e.g., because it is too old, if an
applicant can lawfully be required to disclose the conviction and
fails to do so, that may be sufficient grounds for termination if the
applicant is informed that false or omitted information provided
during the application process is disqualifying.
With regard to arrests, you should not hire an applicant
merely because of a history of arrests that did not result in convictions. A number of states specifically prohibit using an arrest as a
basis for rejecting an applicant and the EEOC has likewise taken
the position that such a policy is unlawfully discriminatory. That
said, if an applicant has been arrested and is out on bond pending
adjudication, the fact of the arrest might be a basis for rejecting
that applicant; however, you should obtain legal advice before
doing so.

DOUGLAS H. DUERR is a partner at Elarbee Thompson, a
national labor and employment law firm with an industry practice area focused on restaurants and franchises. Learn more at
www.elarbeethompson.com.

Buy a Lifelong Investment
for Your Gym!
Quick, Cost-Effective
Communication
Motorola
Two Way Radios Help You...
• Inform trainers of client arrival
• Communicate discretely and
effectively in ANY situation
• Minimize interruptions

Powerful TWO

WAY radio solutions.
2wayradiopower.com

www.2wayradiopower.com • [e-mail]
MOTOROLA and the Stylized M Logo are registered trademarks of Motorola Trademark Holdings, LLC
and are used under license ©2015 Motorola Solutions, Inc. All rights reserved.

GearedUp | 2015 Issue 1

Using a Vendor for Criminal History,
Reference or Credit Check
Most small businesses (and many large employers too) do
not have the resources in-house to perform background checks
into prior employment, criminal history and the like. Thus, many
turn to outside vendors/websites to perform some or all of the
background screening. If you are one of those small businesses,
then it is imperative that you comply with the requirements of the
Fair Credit Reporting Act (FCRA), even if you only use the vendor
to obtain criminal history or reference check services. Failure to do
so can result in penalties, including misdemeanor charges, punitive damages, actual damages, court costs, and, of course, attorneys’ fees. The FCRA does not apply if your business does all of
the screening itself (e.g., calling prior employers, contacting local
law enforcement agencies and so forth.) Keep in mind that state
law may have additional limitations or requirements; for instance,
if you obtain criminal history information from the state crime
computer.
If the FCRA applies, it is imperative that the applicant first
provide written consent. In this instance,“consent”must be
provided on a form separate from the application (i.e., the line just
above the signature authorizing you to obtain background information is not enough). Once the report is received, make sure to

check for obvious errors, i.e., an indication that it clearly does not
apply to the applicant. If the applicant will not be offered the job
based in any way on the results of the report, you must first give
the applicant a copy of the report, a summary of rights under the
FCRA (available from www.consumer.ftc.gov) and an opportunity
to contest the accuracy of any negative information in the report,
which may extend to several days or a week.
If the applicant is ultimately rejected because of information
in the report after having an opportunity to contest the accuracy,
then a Notice of Adverse Action informing the applicant of the
decision must be provided. The report also includes information
regarding contact information for the company that provided
the report, a statement that the decision was not made by the
reporting company, a statement that the applicant can obtain
a free copy of the report within 60 days and a statement of the
applicant’s right to dispute the report with the reporti