Making the proper hiring decision can be a heavy task, especially when using background checks to assist in the hiring process. You’ve weeded through the potential candidates, made your selection and spent the money on vetting your potential employee against your background check procedures. But, what if that person’s criminal history does not align with your company goals? Do you even have a procedure for disqualifying applicants? If so, does that procedure align with the Equal Employment Opportunities Commission’s (EEOC) guidelines for handling these types of situations? As a human resources professional it is important that these guidelines be understood before actually running background checks.
As your background check provider has hopefully told you, there are laws that you must follow when performing background checks for employment purposes. These laws are written in the Fair Credit Reporting Act (FCRA), which is governed by the Federal Trade Commission (FTC) and most recently the Consumer Financial Protection Bureau (CFPB). Background screening companies are required by law to notify their clients about the FCRA but that is essentially where the line is drawn. The compliance and hiring decision is typically left for the employer to discern within their hiring procedures. The FCRA and other background check laws are very important but beyond the scope of this article. The information herein will focus on the EEOC’s guidelines to making hiring decisions when background checks are involved.
It should go without saying that you as the employer should be constantly on the lookout for discriminating against any person in regards to race, gender, national origin, color, disability, age, sexual orientation or religion. The best way to do this is to perform the same type of background check for every employee within a certain job type (with absolutely no exceptions). As an example if you have an entry level position in your company a new applicant must be screened with the same level of background check that each employee prior to them (in the same position) has had. You must also use consistency in disqualifying individuals from employment. It is best to have a firm policy in place for what is not acceptable on a background investigation. The EEOC states that “blanket policies” are unacceptable. An example of a very common blanket policy is “any potential employee that has a felony conviction is not eligible for hire with ABC Company”. Remember to be very specific when writing your hiring policy. The EEOC says to:
“Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
It is also necessary to make exceptions to your policy in certain situations. Actually inquire about the situations from your potential employee through an “individual assessment”. Get the entire story from their angle before making a decision. Remember to take into account if the conviction is related to their direct ability to perform the tasks involved with the position, within the best interest of the company, and the safety of its employees. Consistency with this last part is key; apply the same level of inquiry to everyone and make exceptions due to concrete details. Treat every situation fairly; that is two applicants with the same criminal history are treated the same way. Never base a decision on race, gender, national origin, color, disability, age, sexual orientation or religion.
Lastly, be mindful of the EEOC’s document keeping guidelines:
“Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.”
Managing risk is one of the most difficult things that an HR professional must do. Staying abreast of local and federal laws is of the utmost importance. ProScreening recommends that employers examine their current policies and processes to ensure that they are remaining compliant with each of the issues discussed.
Legal Disclaimer: This article is designed solely for informational purposes, and should not be inferred or understood as legal advice. Persons in need of legal assistance should seek the advice of competent legal counsel.