How changes to the criminal background check policy will affect employers Featured

8:00pm EDT June 30, 2012
How changes to the criminal background check policy will affect employers

Criminal background checks conducted during the hiring process can both save employers money and protect their business.

“If your employees come in direct contact with your customers and cause them harm, your business can be liable if that employee has a criminal record,” says Jessica Ford, CSP, vice president of operations for Ashton Staffing, Inc. “A background check can also provide insight into an individual’s behavior, character and integrity.”

Recently, the Equal Employment Opportunity Commission updated its policy on the use of criminal background checks during the hiring process to discourage discrimination based on race or national origin.

Smart Business spoke with Ford about the importance of criminal background checks and how recent changes are impacting the process.

Why should an employer conduct a criminal background check during the hiring process?

Employers check potential and current workers for several reasons. The things an employer wants to know about a candidate can vary by industry and job function. The most common reasons for conducting a criminal background check are to alleviate negligent hiring; identification verification; checks for a history of child, handicap and elderly abuse; corporate scandals; and most of all to make sure the applicant is telling the truth. It’s estimated that more than 40 percent of resumes contain false or misleading information. Employers want to insure that what they are getting in an employee is what they were promised. The employer might perform a background check to find out whether a candidate actually graduated from the college they said they did or to confirm the candidate worked at their previous employers during the time stated on their resume or job application.

When conducting a criminal background check, what should employers look for and why?

Employers should evaluate each background on an individual basis based on the position the applicant is applying for. Anyone working with children in the state of Georgia must be fingerprinted and processed through the Georgia Bureau of Investigation. This comes as a result of events occurring during the past 10 years. Adult supervisors such as Little League coaches, teachers, day care workers and even the people serving children lunch at school fall under this guideline. Felony convictions of any kind or misdemeanors involving violence, drugs or abuse would result in the applicant not being hired.

When screening potential executives, directors and managers, employers should look for any discrepancies in their job history, verify their education, check their financial history and look for any “white collar” crimes like embezzlement.

There are unique issues surrounding the production and manufacturing industry when it comes to hiring. Many of these positions offer low wages and attract those with few skills or time invested in education. For these positions, you should evaluate what is vital to your organization. Candidates who have a history of violent crimes or felony drug convictions, such as distribution in the past seven years, are probably not a good idea. If the candidate has a record of theft, consider what that could mean for your business and the types of products you produce or sell. Also take into consideration how long ago the candidate was convicted and if it was a single incident.

What has changed because of the Equal Employment Opportunity Commission’s updated policy on criminal background checks?

In April of this year, the EEOC issued new guidance on the consideration of arrest and conviction records in employment decisions. It determined that the use of an individual’s criminal history during the interview and hiring process could constitute discrimination and makes an attempt to discourage using the information differently based on an applicant’s race or national origin.

As a best practice, you should only consider convictions when reviewing criminal background checks, not arrests. Arrest records are not proof of criminal conduct, as they might not report the actual outcome of the situation so they should not be used as grounds for exclusion. Conviction records, on the other hand, typically serve as sufficient evidence that a person engaged in a particular conduct. These records are more reliable and the use of them by an employer is more defensible.

The EEOC does not have the authority to prohibit employers from obtaining or using conviction records. It simply seeks to ensure that such information is not used in a discriminatory way, which is why they are suggesting companies stop using a blanket policy, such as no felony convictions in the last seven years. Instead, review each criminal background result on a case-by-case basis and make sure your requirements make sense for that position. Review the credit and financial history of anyone who will be working in accounting, for instance.

How will these changes affect the way an employer uses criminal background checks for employment screening?

Lawsuits are on the rise. If an employee’s actions hurt someone, the employer could be liable. The threat of liability gives employers reason to be cautious when checking an applicant’s past. A bad decision can wreak havoc on a company’s budget and reputation as well as ruin the career of the hiring official. Employers no longer feel secure in relying on their instincts as a basis to hire. On the other hand, though, if you are too stringent and have unrealistic expectations for position then you are setting yourself up for an EEOC charge. Anyone who has ever been involved in an EEOC investigation can tell you it is not something you want to do.

If an employer is unsure of his or her rights regarding criminal background checks, call your corporate attorney or even the EEOC. The commission is very helpful and can give you very unbiased advice.

Jessica Ford, CSP, is vice president of operations for Ashton Staffing, Inc. Reach her at (770) 419-1776 or jford@ashtonstaffing.com.

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