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Criminal Background Checks: Three Tips for Retail Employers

By Doris Del-Castillo
Tampa Office

Retail employers have turned to the information contained in criminal background checks to vet employment candidates. In doing so, retailers attempt to secure a safer working environment and reduce losses due to theft and other kinds of dishonesty. However, overbroad use of criminal background information has been criticized by the Equal Employment Opportunity Commission because the use of such information tends to disproportionately screen out African-American and Hispanic males. The following three tips will help retail employers keep a secure workplace without running afoul of the EEOC.

First, a criminal background check should be deferred until after a successful interview, or even later in the hiring process. Many states have "ban the box" provisions that prohibit employers from requesting criminal background information on employment applications. To be in compliance with as many states as possible, the request for criminal background information should occur as late in the hiring process as possible. And don't forget – if you use a third party to conduct your criminal background checks, you will have to comply with the Fair Credit Reporting Act, and possibly other laws.

Second, do not take a blanket approach to criminal convictions. Your policy, application forms, and other relevant paperwork should include a statement that the background check will not automatically disqualify the candidate from employment. Each conviction should be reviewed on a case-by-case basis, taking into account the type of crime that was committed, the time that has passed since the conviction, the age of the applicant when the crime was committed, and the relevance of the crime to the position being applied for, as well as other factors.

Third, retail employers should make sure that managers and supervisors are trained on the policy and the proper use of criminal background information. This is especially true in retail environments, where managers at remote locations often have to make employment decisions "on the fly" without easily accessible support from Human Resources or even their regional managers.

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Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit


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