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Trends Cover

Nearly 600 human resources professionals opened up to EmployeeScreenIQ about how they use employment background checks to make hiring decisions and their candid feedback is detailed in our just-released, fifth annual survey of U.S. based employers. The new report looks at how companies manage the process of employment screening, their practices concerning Fair Credit Reporting Act (FCRA), Equal Opportunity Employment Commission (EEOC) guidance, candidates’ self-disclosure of criminal records and how they address adverse findings.

In the past few years, the EmployeeScreenIQ Trends Survey has become a benchmark many employers use to evaluate their background screening policies and practices. This year’s survey provides a unique cross-section of opinions and insights from an assortment of organizations and is a must-read for HR professionals that want to learn about what their industry peers are doing.

Today, we’d like to analyze one of our top findings: What Types of Conviction Records Might Disqualify a Candidate From Employment? [...]

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Rescreening Employees

Before hiring a candidate, you order an employment background check. Let’s say the results come back clean in every area—criminal background, resume verification, and drug screening. Your candidate also meets the requirements and skills needed for the position, so you decide to move forward. Now the question is…is a one-time background check enough? Maybe, maybe not.

You make a hiring decision based on the information you have at the time of hire, and as I’m sure you already know—people and circumstances change over time. That being said, it’s important to maintain a safe work environment by not only screening new employees, but current ones as well.

3 Reasons to Re-Screen Employees

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Compliance Criminal Background Check

To hire, or not to hire…that is indeed the question. Employers review qualifications, skills, and typically, the results of an employment background check to determine if a candidate is not only eligible for a position, but if they would be a good fit for the company.

For most companies, it goes without saying that you should conduct employment background checks to verify education and employment, confirm credentials, and search criminal history. However, when the background check results come in and a criminal record is found on your candidate’s background check—what steps should you take?

Our new guide, Keep It Legal: 5 Steps to Compliance When Your Candidate Has a Criminal Record, will help you to develop a policy designed to improve your hiring practices and keep legal peril at bay.

Download the article to learn more about:

  • EEOC and FCRA regulations and other legal considerations
  • Developing a hiring matrix with consistent guidelines
  • Navigating the ins and outs of individualized assessments
  • The two-step adverse action process
  • Handling candidates who dispute background check results





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Employment Background Checks in Illinois

I have a confession to make: I hate Chicago-style pizza and I don’t get Illinoisans fascination with it. I mean come on! It’s like a slab of concrete. And what’s with the sauce on top of the cheese? Really?

So maybe we don’t know pizza, but the state of Illinois has it going on when it comes to employment background checks. Unlike its border state Michigan, there are very few obstacles to conducting criminal background checks. There are no counties that mandate clerk research, and court access fees are few, inexpensive, and far between. So whether you’re in Chicago, Springfield, Aurora, Naperville, Waukegan, Peoria, Champagne–Urbana or Rockford–that equals lower background check costs and faster turnaround time for employers.

County Criminal Searches

There are 102 counties in the state and criminal records are available each county’s circuit court. It’s no surprise that the most frequently requested counties for research are the counties that encompass the Chicago-land area: Cook, Lake, DuPage, Kane, Will and McHenry.

While Illinois has a state repository for criminal records, individual counties are not mandated to report all convictions. There also isn’t a unified mandate for frequency of reporting among the counties. The repository has a vast number of arrest records and because there is no standard for reporting identifiers, confirming possible records can be time consuming and cumbersome. However, as with any other state, the best practice for background checks is to conduct research at the county level.

Illinois-Specific Sentencing Guidelines

Like every state, Illinois has some interesting sentencing guidelines. In addition to guilty or not guilty, judges have the option to impose “Supervision”. In essence, Supervision means that the person was found or pled guilty, however the judge will assign a fixed time period in which the individual must meet specific criteria. If the individual successfully completes their Supervision criteria, the conviction is wiped away. During this time and upon successful completion, employers cannot treat the record as a conviction.

Consumer Laws and Regulations

There are no pre-emptions to the federal Fair Credit Reporting Act, so everything is straight forward there–standard release forms and consumer notification responsibilities apply.  Background screening companies must have an Illinois private investigation license to perform work in the state.

Employment Credit Checks Restrictions

The state of Illinois does impose restrictions on employers’ ability to conduct credit checks on prospective employees, however, there are reasonable exemptions for those that really need this information. See below.

  • State or federal law requires bonding or other security covering an individual holding the position.
  • The duties of the position include custody of or unsupervised access to cash or marketable assets valued at $2,500 or more.
  • The duties of the position include signatory power over business assets of $100 or more per transaction.
  • The position is a managerial position which involves setting the direction or control of the business. (5) The position involves access to personal or confidential information, financial information, trade secrets, or State or national security information.
  • The position meets criteria in administrative rules, if any, that the U.S. Department of Labor or the Illinois Department of Labor has promulgated to establish the circumstances in which a credit history is a bona fide occupational requirement.
  • The employee’s or applicant’s credit history is otherwise required by or exempt under federal or State law.

And you want to talk about swift criminal justice? The last two Illinois governors are convicted felons. But don’t despair. The state still has its beloved 1985 Bears, Iron Mike Ditka, Da Bulls, the Chicawgo Blackhawks, Hot Dawgs and Brats and the perennial cellar-dweller Chicago Cubs. So employers, between this and employer-friendly background checks, what more could you ask for?



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Assessing the Impact of Criminal Background Checks

As many of your know, I had the privilege of providing testimony to the U.S. Commission on Civil Rights at their hearing on the impact of criminal background checks and the EEOC’s conviction policy on the employment of Black and Hispanic workers in December of 2012.

After great debate and deliberation, the commission released their official statements regarding the hearing in mid-February. I’ve been dissecting the material for a couple weeks now and there is simply no way to give you all of the highlights and lowlights. Instead, I’d like to focus on the conclusion (below) drawn by Commissioner Peter N. Kirsanow (joined by Vice Chair Thernstrom and Commissioner Gaziano), in which I’ve highlighted several key points.

The last part of their conclusion says it all for me: “The EEOC seems to live in a magical world where forcing employers to hire a person they do not want to hire because he may be untrustworthy or dangerous has no costs. But just because the EEOC does not see the cost doesn’t mean it doesn’t exist.”

No one wants a truly reformed ex-offender to be forever unemployed. The question is whether this Guidance is the best way, or even a reasonable way, of increasing employment among ex-offenders. The EEOC should also remember that employers’ interests should be taken into account as well. After all, they are not the ones who broke the law. “I was complying with the EEOC’s Guidance” is not much of a defense in a negligent hiring lawsuit. Although the Guidance does not prohibit the use of criminal background checks, it strongly discourages their use and encourages employers to err on the side of hiring ex-offenders.

In many cases, the Guidance encourages employers to hire an ex-offender against their better judgment. If that were not so, employers would be leaping to hire ex-offenders without being prodded by the EEOC. Whether the employer fears the ex-offender will steal from the business or harm a customer, it is foolish to push him to override his judgment, especially when sixty percent of ex-offenders will recidivate.

EEOC Commissioner Lipnic and Ms. Miaskoff both portrayed this guidance as a mere refinement of the 1987 Guidance, rather than a sharp departure. But then why would EEOC Commissioner Lipnic state that a blanket rule against hiring felons would no longer be permissible? That is a sharp departure from previous practice.

Additionally, the effort the EEOC has put into publicizing this Guidance, taken in conjunction with the many lawsuits it has filed over the last few years regarding the use of criminal history in hiring, suggests that the EEOC will be interpreting and enforcing the Guidance more aggressively than it has in the past. 

The EEOC and various groups representing ex-offenders will argue that a criminal record should not be a life-long scarlet letter. If ex-offenders cannot find employment, they are more likely to reoffend. Fair enough. But the burden of rehabilitation shouldn’t fall on private companies. If a company believes that an applicant is the best person for a job regardless of their criminal record, they will hire them. If they wouldn’t hire the person with a criminal record but for the fear of an EEOC investigation, the employment market is distorted and a cost is imposed on the company.

Griggs imposes this sort of regime on companies with regard to race and the use of tests and education requirements, but at least Title VII was clearly enacted to prohibit racial discrimination. Despite the Guidance’s invocation of disparate impact theory, the main goal is to increase the employment of ex-offenders. Title VII was definitely not enacted to prohibit discrimination on the basis of criminal history. If the country wants to shift the cost of criminal rehabilitation onto private employers, Congress should pass a statute prohibiting discrimination on the basis of criminal history. Otherwise, this is outside the EEOC’s purview.

The Guidance will have other costs too. For small companies that have the resources to hire attorneys, figuring out how to comply with the Guidance will cost several thousand dollars – money that could have been used to hire a new employee. For large companies, complying with the Guidance will add another level of inefficiency to hiring. In an effort to avoid the eye of the EEOC, companies may avoid using background checks and simply hire only the number of blacks they need to avoid scrutiny – and no more. The EEOC seems to live in a magical world where forcing employers to hire a person they do not want to hire because he may be untrustworthy or dangerous has no costs. But just because the EEOC does not see the cost doesn’t mean it doesn’t exist.

I don’t believe that the EEOC went out of their way to hatch a sinister plan to systematically punish employers. However, that might just be my naivete. If they did, that’s a much bigger problem. This past summer, I offered 5 suggestions for what can be done to allay employment background check discrimination concerns. It would be great if all interested parties got together and crafted a workable solution for all involved.









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San Francisco Ban the Box

It’s official—San Francisco has banned the box. Employers in the city or county of San Francisco may no longer inquire about criminal history on employment applications or during interviews. Titled The Fair Chance Ordinance, No. 17-14, the new law goes into effect on August 13, 2014 and prohibits both private and public employers with at least 20 employees from asking about a criminal past on the job application or in an initial interview. The law also restricts asking about criminal history on applications for affordable housing within the city. With respect to employment, the law applies to temporary workers, contract workers, and city contractors and subcontractors.

If an employer wants to screen for criminal history information, the ordinance adds some new requirements. In addition to delaying the criminal question until post interview or post-offer, it also requires additional notification prior to any inquiry, notice prior to taking a negative action, and an individualized assessment to give the applicant a chance to ask for reconsideration.

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Background Check Company

You know that feeling when you’re watching a horror movie? That creeping feeling of anticipation, knowing that at any minute something will go wrong? If you think horror movies are scary, just imagine how a hiring horror story might feel for your company. Maybe a candidate’s criminal record wasn’t found in the screening process…or you didn’t send an adverse action notice to your applicant and now you have a lawsuit breathing down your neck. And you’re left wondering, how could this happen?

We’ve said it before and we’ll say it again—an employment background check is only as effective as the background screening provider behind the results. Are you confident that your company is receiving the most accurate results? You rely on these results to ensure that you’re making informed hiring decisions and that the candidate you choose is the best fit for the position. Are you placing your trust in less-than-reliable background check results?

If you’re unsure about the quality of your employment background checks, we have two resources that will help you determine if you should start searching for a new screening partner.

Take our quiz to find out if it’s time to break up with your background screening provider:

Pre-employment screening

Our article, HR’s Guide to Effective Evaluation of Background Screening Providers will provide you with the five key areas to evaluate a current or potential provider:

HR's Guide to Evaluating Background Screening Providers

 

 

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EEOC Guidelines Employment Background Checks

Despite the two years that have passed since the EEOC clarified its guidance on the use of criminal background checks, there’s still a lot of confusion out there. I am hearing from many employers struggling with how to draft and implement a background screening policy that 1) protects their organization 2) is fair to job applicants, and 3) will stand up to an EEOC enforcement action. Below are a just a few of the questions that I’ve been hearing recently.

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Background Checks in Healthcare

With recent news coverage putting the spotlight on stricter background checks for senior caregivers and screening requirements (or lack thereof) for Obamacare navigators, the healthcare industry should be increasingly aware of the need for more comprehensive employment background checks.

Employers in the healthcare industry should be concerned about not only the safety of employees, but particularly the safety and wellbeing of the people they care for—the patients. Whether it’s a hospital, nursing home, or hospice, the healthcare industry is another industry in which employment background checks are more than just an asset—they are vital to protecting patients. EmployeeScreenIQ data shows that of those we screen in the healthcare industry, we find a 21% criminal hit rate, which is lower than our average hit rate of 28%, but this is obviously still a significant number of job candidates.

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For quite some time now, I’ve felt the organizations that support the formerly incarcerated have done a disservice to ex-offenders when it comes to their stance on employment background checks.  Rather than educating ex-offenders about the reality of criminal background checks and how to prepare for the tough questions from employers that are sure to come and educating employers about the benefits of hiring ex-offenders, organizations such as The National Employment Law Project (NELP) and the National Consumer Law Center (NCLC) have spent far too much time focusing on what they can do to eliminate the practice altogether.

In doing so, they continually point to statistics that they should know are misleading.  The best example of this is NELP’s assertion that the 65 million Americans with criminal records are unemployable due to their convictions.  If this were true, employers wouldn’t be able to hire anyone.  EmployeeScreenIQ data shows that less than 10% of those with criminal records are actually eliminated from employment when a background check reveals a conviction.  Based on our experience, the number of unemployed ex-offenders is widely exaggerated.

I don’t pretend to ignore the fact that some employers have enacted unfair hiring criteria when it comes to those with criminal records, but it is important to acknowledge the public safety and risk management benefits society receives as a result of this practice.

Here are my top 3 strategies to really promote re-entry into the workplace

1. They need to spend time educating ex-offenders about what they can do to prepare themselves for the process.  U.S. News and World Report columnist, Jada Graves recently wrote what I consider to be the best career advice geared towards those with criminal records I have seen.  It doesn’t sugar coat the issue and provides candidates a simple road map to follow.  It encourages candidates to set reasonable expectations for the jobs that might be out there, cautions them not to lie about their past and suggests that they study their consumer rights.  If you haven’t read this article yet, I would encourage you to do so.  To me, this should be required reading for all ex-offenders and the organizations that support them and should be used to develop training and assistance programs.

2. Rather than focus on misleading information such as the example I showed above, run with the issue that allows you to take the high ground:  Accuracy.  Every time I read Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses, a study conducted by the NCLC I find myself applauding their efforts to highlight their concerns over inaccurate background checks, while at the same time cringing over their gross over-generalizations about the fact that all background screening companies knowingly report unverified data.  The NCLC highlights instances of reporting false positives, sealed or expunged information, multiple ledgers for the same offense, etc.  Unfortunately, there are some companies that routinely engage in these practices but they are the exception, not the rule.  I strongly support their efforts to hold those offenders accountable for failing to adopt reasonable procedures to avoid inaccurate information.  That’s a real problem and is unfair to anyone who has fallen victim to inaccurate data; ex-offender or not.  But let’s not paint the picture that all background screening companies have no regard for accuracy.

3. Develop studies that highlight the benefits of hiring ex-offenders.  To be sure, not everyone with a criminal record will qualify for every job, but show employers what they might gain by taking a chance.  Looking at retention rates, recidivism, tax credits, etc.  If groups like NELP and NCLC would work hand in hand with the employer community, they would accomplish so much more for their constituents than they do by waging war on background checks.

By taking these steps, I think that ex-offender advocacy stands a much better chance of making a real impact on the lives of those with criminal records and being a reliable voice in the eyes of the public and the media.



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