Background Screening Under Fire by The EEOC and Others

Jason Morris

Over the last several years as employment screening has become the norm, various government agencies and others have been critical of the process.  Their reasons differ but the debate is the same, in its most simple form many that are critical simply don’t understand exactly what we do as an industry.  Many of the critics have used the same argument over the years.

  • Employers use credit scores to eliminate applicants with bad credit.
  • Any criminal record will ban you from employment anywhere.
  • Employers are intentionally creating a second class of unemployable citizens who have criminal records.
  • Having an employer run your credit will ruin your credit.

These are all false assumptions.  Pre Employment Credit Reports do NOT contain a credit score, in fact, many things that appear on a consumer credit report do NOT appear on an Employment Credit Report, such as account numbers and other information not relevant to employment. In addition, pulling these reports count as a soft inquiry, thus not affecting the overall credit score.  Under federal and many state laws, these negative things should only be used if within the scope and responsibilities of the job.  In our experience, less than 10% of employers even utilize these types of reports.

Now let’s discuss criminal records.  Like credit, simply having a criminal record would not bar one from employment everywhere.  Under Federal and many State laws the nature of the offense and conviction should be recognized and compared to the job responsibilities.  It is very important to remember, companies spend a lot of money finding and recruiting good talent.   The intent of the company is to hire the individual, not find ways to exclude them.  If the company feels the offense or conviction will be a risk to them based on the position, they may chose to look elsewhere.

As screeners, we believe there is a job for everyone.  However, there are times when because of someone’s past, they may not be the best fit for the job they are seeking.  A candidate with no job relatedness convictions and solid background and qualifications just might have the edge for certain positions; there is no mistaking this reality.  It is simply an employer’s right to choose what is best for their organization and mitigate their risk as much as possible. Organizations are simply damned if they do and damned if they don’t.  When a company decides to take a risk on someone they are then vulnerable to a Negligent Hiring lawsuit.  In a nutshell, employers are getting sued of they failed to properly screen an applicant.  If they could have known, they should have known.  If they don’t take the risk they are vulnerable to other types of suits and penalties such as violations of the EEOC.  The only fair thing to both parties is to at least allow the company knows what type of risk they may be encountering.

A recent article on the Huffington Post really takes aim at the employment screening industry and employers.  The writer mentions a recent report by the National Employment Law Project (NELP).  They cover many of the misconceptions outlined above but also falls short in many areas.  What the report fails to mention is the over 50% of applicants who simply lie and misrepresent things on their resume.  In a recent study conducted by EmployeeScreenIQ over 56% of people lie on their applications.  These include individuals with fake degrees from known diploma mills, false salary histories, misrepresenting degrees altogether and jobs they actually never had.

For critics of the process I offer two recent stories:

Mark E. Lawlor bludgeoned a women, Genevieve Orange, 29, to death with a hammer, and then raped her as she lay dying.  The photos of her body were too gruesome to be shown in the courtroom.  Her assailant was a leasing agent in her building and used his passkey to enter her apartment as she slept on her couch.  He bashed her in the head 30 times with a hammer, and 17 more times on her arms and body, an autopsy showed, then sexually assaulted her and left behind DNA that implicated him.  What was in his background? While on probation in New Jersey for an earlier crime “Lawlor moved to southern Virginia. But at 18, he drunkenly stole a truck, rolled it over and killed a friend. He went to prison for the first time. . . In 1998, while Lawlor was living in Northern Virginia, he began stalking an ex-fiancée in Great Falls. One night, he snatched her from her car by smashing her windshield and swiping the keys. He did another five-year prison stretch.”

More recently in New York a casino bus driver crashed on a NY highway killing 15 people.  This individual had a history of driving without a license and other vehicular offenses and served nearly seven years for manslaughter and grand larceny.  His two criminal convictions: for stabbing a man to death and stealing from the Police Athletic League. Williams shouldn’t even have been at the wheel – his driving privileges were suspended after he ignored tickets for speeding and driving without a license in 1995, The Associated Press reported. Now to be fair, we don’t know if the driver did anything illegal to cause the crash, but with the aforementioned convictions (especially the driving offenses), what was this person doing driving a tour bus?  This company failed to run a proper background check, they have learned the hard way.  In addition to these 15 innocent people being killed, the victims families are already filing multi million dollar suits against the company.

These cases may be extreme but we come across these things regularly.  I am curious to hear what you think?

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Jason Morris

President & Chief Operating Officer at EmployeeScreenIQ
A veteran screening and risk management professional, Jason Morris founded EmployeeScreenIQ in 1999 and acts as the company’s chief operating officer and president. Morris is a frequent speaker delivering captivating, interactive discussions on background checks, global screening, recruitment and staffing. He educates audiences in best practice initiatives as they relate to organizational employment screening programs. Morris has been quoted in numerous business and industry publications including The Wall Street Journal, MSNBC.com, USA Today, New York Times, among others. He is also a licensed private investigator in the states of Ohio, Illinois, New Jersey, Texas, Arizona and Nevada.
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