The concept behind pre-employment background screening is simple. The implementation of those screenings is anything but, thanks to an ever-changing mix of laws and other challenges. Right now, five major issues dominate the industry, and companies that use screening would be wise to pay attention.
1. "Ban the Box." That’s the common term for laws prohibiting employers from asking questions about criminal history on job applications. If you live in one of the 21 states and 100-plus municipalities in which Ban the Box laws have been approved — and that number is growing quickly — that familiar “have you ever been convicted of a crime” question could land you in hot water.
The reason behind the law is a concern that ex-offenders who have paid their proverbial debt to society by serving time or paying fines are disenfranchised. The perception is that many employers use past criminal convictions as a reason to reject applicants, and that this policy has a greater impact on members of some minority groups.
The law removes a valuable integrity test for employers. If someone says they’ve never been convicted and you learn otherwise, it says a lot about their honesty. However, the laws generally don’t prevent you from asking that question in an interview setting or conducting a criminal background check on a prospective hire.
2. EEOC’s strategic plan. In April 2012, the Equal Employment Opportunity Commission approved guidance for field offices that (among other things) offered policy on criminal conviction records. The plan addressed the EEOC’s position that using past criminal convictions in employment decisions may be discriminatory and illegal if there’s a disproportionate impact on minority groups.
The EEOC expects companies to have “facially neutral” policies that do not appear to be discriminatory. So-called “zero tolerance” policies are a prime target. EEOC places the burden on employers to prove that a negative employment decision related to a past conviction is directly related to the job at hand and connected with a business necessity.
Under the new guidance, the candidate must be given an opportunity to explain the circumstances. The employer must consider the nature of the conviction, how long ago it occurred and how old the applicant was at the time, and whether the applicant has performed similar work with no problems since being released from incarceration and/or probation. If the past conviction is unrelated to the job or occurred well in the past, the employer cannot use it as a reason to refuse employment.
3. The Fair Credit Reporting Act. If you assume this doesn’t apply because you don’t consider credit information when evaluating applicants, think again. The FCRA applies if your screening is performed by a third-party vendor. There are highly specific rules about disclosing your screening process and obtaining authorization from candidates. If you reject a candidate because of something you learned through the screening process, you have to follow additional procedures to the letter. This is a case where doing something similar won’t satisfy the law, and the feds have been aggressive in their enforcement. If you’re using background screening and you’re not addressing these issues, you’re setting yourself up for a legal battle that you’re going to lose. There’s zero wiggle room.
4. Social Media Background Checks. In a word, don’t. Yes, they’re common, but looking at an applicant’s Facebook page can present dangerous legal implications, especially in the 21 states with restrictions. You may see protected information such as marital status, age, and race. And by looking on social media, you may be violating the candidate’s expectation of privacy, since you’re not their “friend.” Even more worrisome is the difficulty in proving that the Jane Smith whose page you found is really the Jane Smith you’re interviewing. Teenagers often have “fake” pages for parental consumption and real ones for their friends. Criminals like child molesters may do the same.
5. Reference Checks. Companies are in such a hurry to hire that they’re neglecting to perform reference checks. That’s a bad idea, because a reference check often reveals information that a background check won’t find. Reference checks can be time-consuming, but a number of companies (disclaimer: that includes ours) have developed technology to speed up and simplify the process.
Background screening is still a critical component of the hiring process, even with all these challenges. The key is to work with a partner that has a thorough understanding of the law and can keep you in compliance. Going it alone can be riskier than you realize.
Mike McCarty is CEO of Danville-based Safe Hiring Solutions