DUIs & Background Checks: What It Means For Employment

Should a DUI on a background check keep you from hiring a job candidate? In many cases, employers can exercise discretion when evaluating a candidate with a DUI. Company policy, the severity and age of the offense, and any remediation are all factors to consider. However, it’s important to follow legal and regulatory requirements when making your hiring decision.

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One of the more common criminal offenses flagged for employer review on pre-employment background checks is DUI—driving under the influence of alcohol or drugs. Convictions for DUI appear in both criminal background checks and driving record checks.

A DUI conviction may rule out hiring in certain regulated industries, but in many hiring situations, you as an employer can exercise discretion in evaluating its importance and relevance to the job you’re filling. Depending on your jurisdiction, this type of individualized assessment may be required by law, but it’s also a best practice to comply with Equal Employment Opportunity Commission (EEOC) guidance on the use of criminal background checks in hiring.

This article will give you an overview of DUI, how sometimes-conflicting laws apply to its use in hiring decisions, and other factors you may consider when a DUI conviction appears in an applicant’s background check.

Will A DUI Show Up On A Background Check?

Driving under the influence of alcohol or drugs is a criminal offense, and criminal background checks will disclose convictions for DUI—known in some jurisdictions as DWI (driving while intoxicated) or OUI (operating [a motor vehicle] under the influence). If a pre-employment background screening includes a driving record check or motor vehicle record check (MVR), a DUI conviction is likely to appear there as well.

In the absence of a conviction, a DUI arrest may also show up on a background check if the case is still pending—that is, if a court hasn’t yet issued a verdict in the matter. Some background check companies will also report DUI arrests that did not result in a conviction, as long as the filing date of the case is within the last seven years, as allowed by federal and state law. While GoodHire reports pending cases, GoodHire excludes DUI non-convictions from pre-employment background screens in an effort to help employers comply with EEOC guidance which suggests that arrests not leading to conviction should not be considered for hiring purposes.

DUIs & Background Check Failure

Will a candidate with a DUI on their record fail a background check? A DUI will certainly trigger an alert on the background check, but that doesn’t necessarily mean “failing” the check. While applicants whose background checks come back alert-free are often said to have “passed” their screenings, the opposite isn’t necessarily true.

A background check alert, or “hit,” about a DUI conviction or other criminal record simply flags the item as an issue that requires employer review and consideration. Whether you consider a DUI conviction grounds for declining to hire a candidate can depend on multiple factors.

DUIs & Hiring Decisions

Unless you’re hiring for a position that is legally off-limits to applicants with a DUIs on their records, you can consider the following when making a hiring decision:

• Whether company policy has any stipulations about hiring persons with criminal records for particular positions.
• If the position the candidate seeks requires driving a vehicle, operating potentially dangerous equipment, or working with children or other vulnerable persons.
• Whether the DUI conviction is a misdemeanor or a felony. Misdemeanor convictions are common with most first offenses. Felony DUI convictions may indicate a repeat offense, that the offense led to injury or death, or that minor children were in the vehicle at the time of the offense.
• The age of the offense. Depending on your and your candidate’s location, DUI convictions may be reported in background checks indefinitely. Certain state laws may limit reporting to seven or 10 years. A conviction may have different implications for the hiring decision if, for instance, you are considering a recent case versus one that is a decade old from an applicant with an otherwise clean record.
• Remediation or rehab. You may take into consideration applicants’ documented completion of programs aimed at helping them change their habits and avoid re-offending.

DUIs & Background Checks: Legal Considerations

The legal requirements around DUI can sometimes seem contradictory. Regulations can forbid hiring someone with a DUI on their record for certain jobs, such as driving a tractor-trailer or a school bus. Yet it may be frowned upon to use a criminal conviction (including one for DUI) as the sole basis for turning down a job applicant for other jobs—a point we address below in our discussion of federal fair hiring laws.

Here are some legal issues to consider if a DUI shows up on an applicant’s background check.

Federal Laws

FCRA

All pre-employment background checks are subject to the consent requirements spelled out in the federal Fair Credit Reporting Act (FCRA). You’ll find a more detailed review of FCRA and its requirements here, but its provisions include:

• Notifying each job candidate in writing that you intend to run a background check on them.
• Obtaining each applicant’s written consent to conduct a background check.
• If you decide not to hire on the basis of the background check, providing the candidate with the results of their background check and giving them an opportunity to dispute any inaccuracies with the background check provider.
• Following the adverse action process if background check findings point to a decision against hiring the candidate.

EEOC Requirements

In order to avoid liability under Title VII of the Civil Rights Act of 1964, employers should follow fair hiring practices spelled out by the EEOC on the use of criminal records in hiring. EEOC guidance suggests that an employer should not reject a job applicant based solely on past arrests or criminal convictions, provided no state or federal regulations forbid persons with criminal records from holding the job, and the offense isn’t relevant to job requirements.

Individuals with criminal records including DUIs must be considered on a case-by-case basis, and mitigating circumstances such as how long ago the offense occurred, the age of the applicant at the time of the offense, completion of rehabilitation or diversion programs, satisfactory job performance in a similar role, and other context should be considered.

DOT Drug & Alcohol Clearinghouse

As of January 2020, all US organizations that employ drivers who require commercial driver’s licenses (CDLs) must consult the Department of Transportation’s Drug & Alcohol Clearinghouse as part of their pre-hiring screening process. This database tracks commercial driver records for DUIs and other drug or alcohol related infractions such as failed or refused drug tests, and whether a driver with an infraction has been cleared for return to duty by a substance-abuse professional.

The clearinghouse requires and provides web forms for obtaining driver consent to run each query; if a driver refuses consent, they cannot be hired for a “safety-sensitive” position, including driving a commercial motor vehicle.

State Laws

Local state, county, and city fair hiring laws, also called “ban the box” laws, prohibit employers from asking about past convictions or incarceration on job application forms. The laws typically allow employers to inquire about criminal convictions (including DUIs) and factor them into the hiring process, but only later in the hiring process (typically after the initial interview or after a conditional offer has been made).

Details of these measures vary from jurisdiction to jurisdiction. Some state and local laws forbid employers from considering misdemeanor or other low level convictions if the offender completes rehab or remediation, for instance; others require that employers extend the waiting period between pre- and final adverse action to allow the candidate more time to dispute their results.

Professional background check providers such as GoodHire, which operates in all US jurisdictions, can help employers navigate overlapping federal and state hiring laws, and help avoid inadvertent compliance mistakes.

Make The Right Call

The appearance of a DUI conviction in a background check will matter in different ways to different employers. It’s important for employers to understand the nature of the offense, its ranges of severity, and the legal and regulatory requirements it triggers in connection with different types of jobs. It’s also important for hiring managers to understand the extent of their discretion when considering a DUI alert, and other factors they can weigh when considering its impact on job fitness. Finally, if a DUI conviction turns out to be grounds for declining a job applicant, it’s critical to comply with FCRA and fair hiring laws when notifying the candidate.

Working with a professional background check provider such as GoodHire can give employers confidence that their screening process complies with the FCRA and applicable state and local fair hiring laws. As a compliance-oriented background check provider, GoodHire allows HR teams and hiring managers to focus on job candidates’ skills and qualifications for the position. Sometimes, that means weighing the significance of an applicant’s past missteps against their value as employees today.

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