If your company is like most employers, they run background checks on all of their applicants after an offer of employment has been made with the organization. Odds are that the applicant that the organization is trying to hire may have a criminal history, as there are over 65 million people, or 20% of the country, who have a criminal history (cnn.com). An article in this newsletter titled, “Are Your Company’s Background Checks Compliant?” establishes a process that all employers should follow when conducting post-offer background checks.
It is important for employers to pay close attention to the information that they consider when choosing to hire or not hire a potential employee. It is very important that employers are consistent with the way that they use any form of background information. It is also important to understand the different laws and legal issues that must be followed when conducting background checks. “The Fair Credit Reporting Act (FCRA) requires that prospective users of the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose” (ftc.gov). In other words, employers must inform applicants that they will be conducting a background check on them and that they must also sign a consent form in order for the organization to do so. The biggest mistake employers make in regards to the FCRA is either failing to get the applicants consent for the background check, or failing to follow the adverse action procedure outlined in the FCRA.
Another important law to understand and comply with is the Equal Employment Opportunity Commission (EEOC) which, in 2012, updated their guidance regarding an employers’ use of background checks. The update emphasizes that background checks have an unintended impact on particular minority groups. The EEOC’s guidance to ensure that the criminal history that is being considered along with how long ago the criminal history was documented and whether this criminal history has anything to do with the nature of the job that the applicant is seeking, should all be considered by the employer.
Employers should also consider taking a look at their current job application and research their state and local laws regarding what they may and may not ask applicants with regards to their criminal history. There are ban-the-box ordinances that apply mostly to public employers, however, four states, Hawaii, Massachusetts, Minnesota, and Rhode Island have passed ban-the-box laws that apply to private sector employers. Some state laws state that you may not ask an applicant about records that have been expunged from their criminal record, as well as non-conviction records. In addition, some states have exceptions to these rules in certain industries such as financial institutions, health care, and childcare. So, knowing and understanding your state’s individual employment-related laws with regards to what may be included on an application is important.
There is no right or wrong answer when it comes to considering any particular criminal history event that may be on an applicant’s background check report. A tool called, a “hiring matrix” helps employers track what criminal histories are most relevant to the certain jobs that they are hiring for. This allows employers to develop trends and hire more consistently. A general rule of thumb when creating a “hiring matrix” is to make it position specific. For instance, if a general contractor chooses not to hire an applicant as a plumber, due to the fact that the applicant has a theft on their record, and the job requires the applicant to work in a customer’s home, the next time that the employer is hiring for that job they will then have the “hiring matrix” to refer to should a criminal history event of theft come up again. Or, if the job requires driving, employers may want to take an applicant’s driving under the influence (DUI) or speeding record into account. As these are just examples, any employer should be able to see that a “hiring matrix” would be a helpful tool to avoid any bias that may affect the decision of the hiring manager, in order to hire the most qualified applicant.
It is important for an employer to collect what it believes is the most relevant criminal history information in order to make the “best” hiring decisions. When employers implement a “hiring matrix” and include each job title or classification along with the list of specific criminal charges that the employer decides are unfavorable it is easy to set aside any bias or discrimination because they are then being consistent in their hiring practices.
For additional information on this topic, please contact us at www.NewFocusHR.com.
Written By: Patrick McKenna, SHRM-CP