Deciding to perform background checks on prospective hires generally doesn’t create many dilemmas for employers. In fact, because it helps to protect employees and assets, it’s generally considered to be a good thing. But the information an employer receives may lead to all sorts of ethical quandaries.
Some information on a background screening report doesn’t require a great deal of consideration. If you’ve just discovered that your outside sales applicant has been convicted of five violent, predatory-type crimes in recent years, it’s probably a safe bet that you won’t hire her. But you do have to keep in mind that the EEOC wants you to consider how recent the crimes were and how they relate to the position.
Suppose you’re the hiring manager at a school district and a candidate was convicted of drunk driving eight years ago. If he’s applying for a position as a school bus driver, that means a lot, and you’re probably justified in rejecting him. If it’s for a custodial position, and his record has been clean since then, you might not think twice about hiring him. So what would you do if he’s applying to be a classroom aide? That’s where the ethical dilemmas come into play.
And what would you do if that candidate had checked the box on the application that said he had never been convicted of a crime? In our eyes, that’s an integrity issue. The candidate has lied to you, and we dislike liars. But is that a legitimate reason to refuse to hire him? In some states and communities, you can’t even include that question on an application (although you can usually ask it during the interview process).
Now let me make it more complicated. The reason the candidate checked the “no” box is because he completed an agreement with the court in which he was convicted. He served his time, performed community service, paid his fines, and attended AA meetings, so his conviction was supposed to be erased. Your background check provider discovered that it hadn’t been.
Does your head hurt yet? Consider this: if that conviction had taken place in Albuquerque, you’re not even supposed to know about it. New Mexico law prohibits reporting convictions that are more than seven years old. He could be a convicted serial rapist, murderer, or child molester, and you’d have no way of knowing.
When it comes to ethical quandaries like these, there are three things you should consider. The first is how you ask questions about past behavior. For example, just because someone was arrested for a crime doesn’t mean that they were convicted. An arrest is an accusation, not proof. So you need to focus on convictions, rather than arrests. Even asking “have you ever been convicted of a crime?” is probably too broad to protect you. You might want to ask “have you ever been convicted of a felony?” If the position involves working directly with children, you might ask if he’s ever been convicted of a crime involving children. A question that specific is easier to defend.
Second, keep the EEOC’s guidelines in mind. Don’t use a “zero tolerance” approach for past convictions. Consider how long it’s been since the conviction took place, whether there have been any subsequent convictions, how the specific charge relates to the position you want to fill (a car dealership would probably be justified in refusing to hire a chronic auto thief), and whether the applicant has been successful in similar work since the conviction.
Third, develop clear policy for guidance when considering applications. The more you think about issues such as those I’ve described here and spell out exactly how your company will respond to those situations, the more likely that you’ll prevail if a rejected applicant challenges you in court. Work with an attorney who is well-versed in employment law to ensure that your policies comply with federal, state, and local laws.
Finally, remember that no background screening process is foolproof. The fact that nothing was reported is no guarantee that the applicant doesn’t have any history of criminal or otherwise unacceptable behavior. For example, it’s widely known that 80 percent of sex offenders have no criminal history. That’s why we recommend performing reference checks on potential applicants. No, it isn’t 100 percent effective, but it will give you more insight into whether the applicant is a good fit. Of course, it may create some ethical quandaries of its own!
Mike McCarty is CEO of Danville-based Safe Hiring Solutions.