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Background checks: How safe is too safe?

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by on
in Employment Background Check,Human Resources

Q. We are considering instituting a criminal background check policy for all employee positions. We’ve heard scary stories of lawsuits regarding negligent hiring, and we’d really like to avoid that sort of litigation, not to mention the negative media attention. Is there any downside to having an “across the board” criminal background check policy?

A. The EEOC issued new guidance in spring 2012 on this issue. The short answer is that having a rigid, universal background check policy could open your company up to charges of disparate impact discrimination.

Because arrest and incarceration rates are significantly higher among minority groups, instituting a criminal background check will likely have a disproportionate impact on these job applicants. Such policies are not lawful unless an employer can demonstrate that they are job-related and consistent with business necessity. 

The EEOC recommends that criminal background checks be tailored on a case-by-case basis, taking into account the specific nature of the job; the nature of the crime; and the time that has elapsed since individual’s conviction or release.

In addition to considering these factors, the EEOC suggests that employers must engage in an individual assessment that permits employees or applicants an opportunity to explain their record and any mitigating circumstances.

Not doing so could have dire consequences. In Janu­­ary 2010, Pepsi paid over $3 million to settle an EEOC claim of disparate impact discrimination.

While criminal background checks are an important part in selecting employees and protecting your clients and staff, be careful in your implementation. You could be so “safe” that you’re ultimately “sorry.”

{ 3 comments… read them below or add one }

Kay Adams April 2, 2013 at 9:12 pm

It is sad that for-profit screening companies pawn their advertisements as comments. Not only the EEOC is wary of using decades old convictions to evaluate current candidates but an ever growing list of major cities and states are finally eliminating blanket criminal checks in the Ban the Box process or minimizing timeframe. Common sense and scientific stufies dictates that youthful mistakes play no role in the employability of an adult.


Mobile Health April 2, 2013 at 11:32 am

Well done.
Universal background checks can certainly prevent many negligent hiring lawsuits, but if done incorrect, it can open up discriminatory lawsuits as well.
As mentioned by Les in the comments, it is very important to know the regulations surrounding background checks and making sure your policy complies. You should look into all jurisdictions and see what their requirements are. Recently, New York City banned discrimination against long-term unemployed for example.
The EEOC and FCRA are the two leading organizations, and their guidelines are a good place to start. But of course, it is best to subscribe to a professional screening company who will guide you through the process and help limit risk.


Les Rosen April 1, 2013 at 11:49 pm

Excellent column. Most employers understand that employee problems are caused very often by problem employees, so its critical to take reasonable steps to protect your workplace from unqualified, dishonest, unfit or dangerous workers. Failures to perform checks can in fact expose your business to lawsuits, as well as all the costs associated with a bad hire. On the other hand, as the column does an excellent job of pointing out, it is important to not only do checks, but to do them right. Background checks are heavily regulated by legislation, litigation and regulation. A qualified screening firm can help employers strike the right balance and to perform checks related to the position, that are legally complaint. For example, the federal Fair Credit Reporting Act (FCRA) and many similar state laws are also critical. To find a qualified screening firm an employer can check the web site for the National Association of Professional Background Screeners (NAPBS). Employers should pay close attention to make sure any firm they select is accredited by NAPBS, meaning they adhere to best practices as confirmed by an outside audit.


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