How to use background checks and stay out of trouble
The Equal Employment Opportunity Commission has put companies in a difficult position regarding the use of criminal background checks to screen job applicants.
Background checks are used by up to 80 percent of companies, of course. We do so for a number of very good reasons:
1) Most companies simply do not want to employ dangerous or dishonest people.
2) Companies can get sued for negligent hiring and retention if they employ a person with known criminal propensities.
3) Some companies are legally required to screen out criminals for certain positions.
But the EEOC has now launched an aggressive campaign against the use of criminal background checks. It sued a number companies, including BMW and Dollar General, over their use of criminal background checks.
The EEOC charged these companies with discriminating against minorities for excluding all applicants with criminal records.
Companies, according to the government, cannot simply exclude all applicants with a criminal records. Instead, companies should assess each situation individually and determine if the applicant’s criminal record presents a genuine disqualification.
There’s a way to using background check and stay out of trouble.
- Conduct background checks only after a conditional offer of employment is made
The best way to control risk is to reduce the number of background checks. Do not run background checks on all applicants. Instead, make your employment offers conditional on passing a background check.
This will dramatically reduce the number of background checks and avoid numerous other thorny issues as well (background checks often reveal other sensitive personal info that could create other grounds for suit).
- Modify the use of criminal history information
Only search for criminal convictions, not arrests. Consider limiting convictions to seven to 10 years. Conduct an individualized inquiry into each case to determine the nature of the crime and how it relates to the position.
For example, if an applicant is applying to be a truck driver and he has driving related offenses, you can safely exclude that applicant. However, if the applicant has a 30-year-old conviction for disturbing the peace, then that offense should be ignored because it does not relate to the applicant’s ability to drive a truck.
- Have a consistent policy
It is essential to have a consistent policy in how criminal background checks are used. If people are treated differently, the company would be open to allegations of employment discrimination. Companies will need to document each case and explain the basis for each decision. As long as a logical basis exists for each decision, the company should be able refute any allegations of discrimination if they arise.