Section: Personnel
Policy Number: 4-111
Policy Name: Criminal Background Checks
Effective Date: January 1, 2011

  1. Purpose and General Statement of Policy

    1. The University of Delaware is committed to protecting the safety and security of all members of the University community and safeguarding the University's property, funds, and other assets.  To that end, and to assist the University in making well-informed hiring and personnel decisions, the University has adopted the following policies and procedures requiring certain applicants selected for positions to undergo criminal background checks prior to the commencement of their employment at the University.

    2. This policy applies only to candidates who are selected for employment. Except as provided herein, background checks shall not be conducted on any person other than a person selected for employment; and, starting on the effective date of this policy, every offer of employment in certain positions shall be contingent upon the satisfactory completion of a background check in accordance with this policy.
    3. At the University of Delaware, a criminal conviction is not an automatic bar to employment and is considered on an individualized basis in accordance with the procedures and criteria specified in this policy.
  2. Definitions; Applicability: As used in this policy, the following terms shall have the meanings indicated.
    1. A "selected applicant" is any person who applies for a permanent or temporary faculty, staff, student or casual-wage position at the University that was posted on or after January 1, 2011. The term "selected applicant" does not include (1) a person who is an incumbent University employee on December 31, 2010, if such person subsequently applies for another position at the University and has been employed at the University without a break in service from December 31, 2010, through the date of application; or (2) a person who was given a conditional offer for employment on a job posted prior to January 1, 2011.
    2. The term "hiring official" means, in the context of a specific position, the University officer or employee who is responsible for making the final hiring decision for such position. Typically, the hiring official for a particular faculty position will be the chair of the relevant academic department, and the hiring official for a particular staff or casual-wage position will be the director or supervisor of the relevant administrative unit.
    3. The term "Records Managment" means, in the context of this document, employees of the Records Management Office handling the Criminal Background Check process.
  1. POLICY AND PROCEDURE

    1. A selected applicant must have a criminal background check completed prior to commencing employment.  A selected applicant who refuses to undergo a criminal background check shall be deemed ineligible for employment and shall not be hired.

    2. In determining a selected applicant's suitability for employment under this policy, the University is entitled to take into account criminal convictions, pleas acknowledging criminal responsibility, and pending criminal actions. The University may also take into account arrest records, subject to the heightened level of inquiry demanded by the U.S. Equal Opportunity Employment Commission.
    3. A criminal background check may be performed either by the University or by a third-party contractor. In accordance with the Fair Credit Reporting Act, a criminal background check will be performed by a third-party contractor only with the written consent of the selected applicant.  If a third-party contractor is asked to perform a criminal background check, then a selected applicant will be asked to sign a disclosure and authorization form granting the University permission to request a criminal background report on him or her.  Any selected applicant who chooses not to sign the disclosure and authorization form shall be deemed to have withdrawn from the hiring process.
    4. If it is confirmed during the course of, or immediately after the completion of the criminal background check, that the applicant has provided false or misleading information in regards to their arrest or conviction history, that applicant will no longer be considered for employment. If that applicant has already been employed by the University, that employment will be terminated.

  1. Procedure if the Criminal Background Check reveals a conviction of a criminal act, or an acceptance in court of a criminal act:

    1. If a selected applicant is determined, either on the basis of information supplied during the application process or on the basis of a criminal background check, to have been convicted of a crime or entered a plea accepting responsibility for the commission of the crime, then:

      1. Records Management will promptly notify both the selected applicant and the hiring official of such determination.

      2. Records Management will send both the selected applicant and the hiring official a copy of (or link to) this policy. Records Management will inform the hiring official that, under this policy, information relating to the selected applicant's criminal background is sensitive and confidential and is not to be disclosed to or shared with anyone else except as provided in this policy.

      1. If the Criminal Background Check reveals no criminal activity, then Human Resources shall notify the hiring unit to proceed with the offer of employment.

      2. If the Criminal Background Check reveals criminal convictions or acceptance of criminal activity in the form of a guilty plea, Records Management will notify the selected applicant and give him or her an opportunity to confirm or refute the result.  In instances in which the criminal background report is provided by a third-party contractor, the notice will comply with all applicable requirements in the Fair Credit Reporting Act.  Records Management shall allow five business days for the selected applicant to respond.  In no event will Records Management make a negative hiring decision without providing the selected applicant with a copy of the report and an opportunity to respond.  Records Management may make a determination of eligibility once the selected applicant has provided information concerning the results of the Criminal Background Check. In the case where the applicant has not responded to Records Management request to discuss the findings of the Criminal Background Check in the required 5 business days, Records Management will again attempt to contact the selected applicant and give him or her an additional 1 business day to discuss the findings of the Criminal Background Check.

      3. After discussing the findings of the Criminal Background Check with the selected applicant, the official from Records Management wil assess the seriousness of the conviction.

        1. Any conviction in which the crime involved would have been deemed a felony under Title 11 of the Delaware Code will be automatically referred to the review panel.
        2. Any conviction in which the crime involved would be deemed a misdemeanour under Title 11 of the Delaware Code will be reviewed and evaluated by Records Management. Of these, reports involving any of the following characteristics will be referred to the review committee:
          1. an act of violence or the threat of voilence of which the date of conviction is less than five years from the time of application, or
          2. there is a nexus between the criminal conduct and the duties of the job sought, or
          3. a demonstrated pattern of criminal behavior
            4. Any other misdemeanor conviction may be reviewed by Records Management.
      4. If the selected applicant's case merits referral to the review committee, according to the above listed parameters, the official from the Records Management office will present applicant's case to the review panel, with a recommendation on applicant's hiring status. The decision of the review panel will be final.

        1. The University will use a holistic approach when evaluating the suitability of a selected applicant with a criminal record for a particular position. In determining whether a selected applicant is eligible for a position notwithstanding a criminal record, the review panel will make an individual determination based on application and assessment of the following factors: the nature and seriousness of the crime; the nexus between the criminal conduct and the duties of the job sought; any mitigating or aggravating factors; the time that has elapsed since commission of the crime; the age of the selected applicant at the time the crime was committed; the number of offenses committed and circumstances of each; the sanctions or sentence imposed, and compliance therewith; explanations provided by the selected applicant during the application process; and the rehabilitation record of the selected applicant, including such factors as whether the selected applicant made restitution to appropriate victims, whether the selected applicant has accepted responsibility for his or her conduct, and whether the selected applicant has satisfied any conditions of release or parole.
    1. Procedure if the Criminal Background Check reveals an arrest on criminal charges with no case disposition on record.

      1. If a selected applicant is determined, either on the basis of information supplied during the application process or on the basis of a criminal background check, to have a record of an arrest without a case disposition, then Records Management will send both the selected applicant and the hiring official a copy of (or link to) this policy. An arrest record does no more than raise a suspicion that a selected applicant may have engaged in a particular type of conduct.

      2. In order to obtain more information regarding the arrest, Records Management shall notify the selected applicant in writing, provide the selected applicant with a copy of any criminal background check report on which Human Resources relies, and give the selected applicant an opportunity to explain the circumstances of the arrest. In instances in which the criminal background report is provided by a third-party contractor, the notice will comply with all applicable requirements in the Fair Credit Reporting Act. Records Management shall allow five business days for the selected applicant to respond. In no event will Records Management make a negative hiring decision without providing the selected applicant with a copy of the report and an opportunity to respond. If the selected applicant does not respond back to Records Management in the five day period allowed, Records Management will again attempt to contact the selected applicant. The selected applicant will then be given one business day to respond.
      3. If a selected applicant who is the subject of pending criminal charges is hired, his or her continued employment will be reviewed upon disposition of the criminal case. It will be the responsibility of the applicant to notify the criminal background check coordinator in writing of the disposition of the pending charges. Applicant must also be able to provide the necessary court documents provided to them detailing the disposition of the aforementioned charges.

    Submitted by: Office of the Vice President for Finance & Administration