Throughout this series we have discussed the many components of a background check. We have talked about a myriad of the services provided by employment screening firms and special searches that are required for various industries. We have not talked about what to do with the results once you receive them. Compliance, both State and Federal, are a series on their own and will be discussed in the coming weeks.
Results can be tricky and one must take great care in adjudicating them. It’s very important that employers carefully review negative results and ensure that information used against a candidate does not violate State and/or Federal Laws and mandates. One must consider the weight and gravity of the offense and be careful not to make ‘bright line’ hiring decisions. It has been argued that using a hiring matrix or having your employment screening firm adjudicate results could be a slippery slope in that area. (See Douglas El Vs. SEPTA)
A criminal conviction will not necessarily be a bar to employment; rather, such information is only relevant in determining whether the conviction is directly related to the job for which you are applying. Factors, such as age and time of the offense, seriousness and nature of the violation, and rehabilitation will be taken into account.
Many states have similarly legislated (or have included in regulations or guidance) that the elements of a crime for which an individual was convicted must be “substantially related” or “directly related” to the job duties of the position sought. Applying a matrix subject to the deficiencies described above is inconsistent with this goal because matrices do not allow for extenuating circumstances, deviations or mistakes that often occur when evaluating the employability of applicants or employees. Moreover, matrices by definition preclude the detailed case by case analysis often required to overcome the disparate impact on minority groups that inevitably results from criminal background screening. Thus, the employment of an adjudication module created to apply consistency and objectivity actually may result in inconsistency in the hiring process and most likely will violate federal and local laws and regulations.
I am a big believer in using the results as a tool in the hiring process. HR Managers, Recruiters and Security Professionals should review all background results and make sure that the decisions they make are fair, legal and consistent. If adverse action will be taken be sure to follow the pre-adverse and adverse action process as defined by the FCRA. (More on this in a later series). Failure to properly follow this well defined model could result in lawsuits and fines by the FTC. We have several articles on this subject; please visit employeescreen University for more information. Every organization is unique in their hiring needs and practices. As a hiring manager, you know what is important to your organization and cannot entrust the decision-making responsibility to anyone outside of it. Formulate an opinion of the candidate based on the application, resume, interviews, test results, and the candidate’s assertions of skills, experience, aptitudes, character traits, and moral compass. Once you’ve decided this person is the prime candidate to fill the position, use a background check to ensure these criteria withstand impartial scrutiny. Every individual that you consider for employment should be judged on their own merit, strengths and weaknesses, by someone in the hiring organization that can consider the complete individual as the sum of each piece of information available.