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7

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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5

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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2

EEOC Guidelines Employment Background Checks

Since the EEOC clarified its guidance on the use of criminal background checks in 2012, 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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Employment Background Screening

As an HR professional, we know that managing your day-to-day responsibilities is not always a piece of cake. Whether it’s drama in the workplace, recruiting and hiring candidates, or handling employment background checks, there are endless challenges you may encounter throughout the day.

And we also understand that it can be a struggle to keep up with all of the challenges related to employment background screening. And it’s for this reason that we not only want, but need your help in our 5th Annual Employment Background Screening Trends Survey. Your story is one of many, but your story is also crucial to the bigger picture in our 2014 Employment Background Screening Trends Report.

3 Reasons Your Story Matters

1. We’re seeking perspectives from a wide array of HR professionals—from every industry, experience level, and company size–we want to hear your story!

2. Your peers will benefit from your input and vice versa—by sharing your experience in our survey, we will create our 2014 Employment Background Screening Trends Report, which will reveal valuable information on topics ranging from criminal background checks, compliance, employment verifications, credit checks, screening candidates on social media, in addition to other background screening trends.

3. Your voice makes a difference beyond the HR industry–Last year, we received a response from nearly 1,000 HR professionals. For just one example of the media response to our 2013 survey, check out this USA Today article. We hope our 2014 Trends Report will be a powerful influence again in 2014, but we need your response to make this happen.

Employment Screening Trends Survey

Time is running out—our survey will only be available for a short time, so take the survey TODAY (it only takes about 10 minutes) and share with your HR peers so that we can hear as many stories as possible. Oh, and along with providing your valuable opinion, you can enter to win one of two $250 American Express gift cards.









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With a new year just around the corner, there’s no better way to move forward than to reflect on the events, challenges, and growth of the past year. Particularly for the background screening industry and HR professionals, it’s essential to learn from these stories to prepare for the challenges ahead in 2014. Some of our top stories include the misuse of employment background checks, the ban the box movement, and screening candidates on social media. Keep the lessons in these stories under consideration as you move forward with your background screening program in 2014.

EmployeeScreenIQ's Top Background Screening Stories 2013

1. EEOC Targets Dollar General and BMW for Criminal Background Checks

The EEOC continued its crusade to fight discrimination by way of litigation against Dollar General and BMW. Take a closer look at the claims and what employers need to know. Read More

2. Texas Takes on the EEOC: The Case You’ve Been Waiting For

Texas is took on the EEOC claiming that the latest guidelines unlawfully limit the ability of employers to exclude convicted felons from employment. Read More

3. Cha-Ching! K-Mart to Pay $3 Million to Settle Background Check Claims

Charged with background screening violations in relation to adverse action notifications, employers need to be increasingly aware of compliance risks in 2014. Read More

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Criminal Record

If you missed our webinar this past Tuesday, you’re in luck—we have a complimentary recording available for download. We had an action-packed hour with veteran HR executives L. Gordon Paisley from United Airlines, Tammy Henry from Walmart and background screening experts Jason Morris, Angela Preston, and Nick Fishman from EmployeeScreenIQ. What is this webinar all about? Keep reading.

When a background check reveals that your job candidate has a criminal record, how do you respond? Company hiring practices have fallen under increased government scrutiny and it’s critical that you understand the implications of your actions – and have a proactive process in place to address these unique hiring situations.

To learn more, watch our recorded webinar, “My Candidate Has a Criminal Record. Now What?” This session will demonstrate the steps you must take when a candidate’s background check uncovers adverse information. In the webinar, we discuss important legal considerations and share practical advice for developing a safe and compliant hiring protocol.

This Webinar Addresses:

  • Precautions to ensure their organization’s hiring practices are legally compliant with FCRA & EEOC requirements
  • Essential considerations before making a hiring decision on a candidate with a criminal record
  • Best practices for individualized assessments and adverse action

Download the webinar recording here

Employment Screening Trends Survey

We would also like to invite you to take part in our 5th Annual Employment Background Screening Trends Survey. Take our survey and share your insights on some of the most talked-about issues shaping hiring practices and the background screening industry. The survey will take just a few minutes of your time and your feedback will help inform your professional peers. You will also receive a free executive summary of the results for your participation and be entered to win one of two $250 American Express gift cards!








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It must have been a slow week over at Drive Thru HR because they’ve asked yours truly to join them for this coming Monday’s  broadcast (December 16, 2013 at 12:00pm CST) to talk all things employment background checks.

The plan is to talk about increased government scrutiny around background screening and the resultant flurry of legislation – and litigation which have left many human resources professionals struggling to maintain compliance. We’ll also talk about criminal records, credit checks, resume distortion and social networking and other serious challenges facing the HR community when conducting background checks – all under the watchful eye of the EEOC, which issued new guidance last year.

And I’m sure William Tincup (@williamtincup) and Bryan Wempen (@bryanwempen) will have some other fun tricks up their sleeve.

Me, I’m just focused on the intro music.  I’m thinking something like Metallica’s Enter Sandman.

Here’s the 411 if you are interested in joining. http://ht.ly/rurPZ






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