BACKGROUND. In 2012, the EEOC issued guidance that prohibited employers nationwide from instituting automatic, blanket bans on the hiring of individuals with criminal records, cautioning them away from policies categorically denying employment of convicted felons. In the intervening time, we’ve seen states moving to adopt “Ban the box” – banning employment application questions around convictions, basically codifying some of the EEOC guidance.
In August, a US Court of Appeals decision in The State of Texas vs. EEOC, effectively prevents the EEOC from adopting a rigid position on the lawfulness of applicant screening based on criminal background checks from that 2012 guidance, but employers are well advised to consider their background check results through the lens of a rational relationship between the offense and the position. Blanket policies could still be held to be discriminatory on a case-by-case basis and result in liability to employers if it disproportionally affects underrepresented/protected groups.
Then there is the issue of failing to properly update background information in certain contexts.
CASE IN POINT. Recently it came to light that 30% of Washington DC public school employees have expired background checks. Perhaps worse? A Massachusetts company providing programming in 8 DCPS schools could produce no evidence of background checks for its employees in those schools.
The situation came to light only after an employee of that provider in an after-school program was arrested and charged for second degree child abuse.
Employers have a lot with which to concern themselves, not the least of which is a duty to protect the public. In this case, the schools took the opportunity to review only after there had been an incident, despite the mandate that this be a continuous process.
HOW TO PROTECT YOURSELF. All of which raises the question, how to balance a duty of care for your employees, your customers, and general public while ensuring you have a coordinated and comprehensive background and reference check program. Employers need to know who they’re hiring; to do otherwise has risk. To look into who they’re hiring also has risk. What to do?
Review your job descriptions and identify what types of convictions would make a candidate ineligible of employment in a given position; the offenses that may disqualify a candidate from one position, may be insignificant to another. Case in point, motor vehicle offenses: if driving is not a requirement of the position, there is little reason to disqualify a candidate for most moving violations.
Build a rubric for consistent application of your background checks.
Tailor your background checks to seek only the information you need and for only the period of time in which you are legally allowed to make decisions. There are options for partnering with experts in background compliance.
Ensure you implement a policy for employees to inform the company of changes to their status and implement a periodic review process where appropriate.
ASKCIP. CIP’s HR Solutions can help work with you on reviewing your job descriptions and provide guidance on what background may be appropriately reviewed.
Our comprehensive SAFE HIRE INVESTIGATIONS can tailor services to your needs, filtering for only the information you need for your decision making process with our FRCA-compliant services.
Safe Hire Investigations, a CIP Group Company, has the experience and resources necessary to help you design and implement a comprehensive, cost-effective pre-employment background screening program. Offering a range of investigative services, tailored to meet your specific needs, the Safe Hire process includes:
National Criminal Record/Sex Offender Registry Searches
Massachusetts Criminal Offender Record Information (CORI) Searches
County/State (where available)/Federal Criminal Record Searches
Civil Record Searches
Government Record Searches
Motor Vehicle Driving Record Searches
Bankruptcy Record Searches
Previous Employment Verification
Professional License Verification
Easing your administrative burden, and easing your mind.