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.

About the Author

Will Temby

Will has enjoyed a 20-year career in leadership positions in the hospitality and travel industry throughout the U.S. with the Hyatt, Sheraton, Hilton, Renaissance and Steamboat Ski and Resort corporations. Will received a Bachelor of Science degree from the University of Massachusetts at Amherst. From 2000-2007, he served as President and CEO of the Greater Colorado Springs Chamber of Commerce. He also served as Vice President-Special Projects for the University of Colorado Foundation from 2007 to 2009. Will is a past Chair of the Board of Directors of the National Homeland Defense Foundation and former member of the United States Chamber of Commerce Committee of 100. He is married to Nan, has five wonderful children, and enjoys coaching, traveling, hiking, golfing and skiing.

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