Overcoming unfair barriers to employment is one of the current strategic enforcement priorities of the EEOC. The commission says it wants to further educate the public and the employer community on the appropriate use of conviction records. They urge employers to give job applicants a chance to explain past criminal misconduct before they are rejected to avoid disparate impact. They also recommend that employers stop asking about past convictions on job applications. Employers are walking the fine line between negligent hiring suits and discriminatory suits all while trying to recruit the best candidates. How can any organization successfully compete in their respective market by hiring the best applicant for the position without stepping on an EEOC or FCRA landmine? A good first step is to review your screening policy to ensure there are no blanket exclusions of certain criminal convictions without any individualized assessment of the crimes or the nature of the respective positions. Some industries may have licensing or insurance requirements that necessitate blanket exclusions but even those industries must consider the individual requirements position by position. As we have learned in the past year, blanket policies with regards to criminal background information will not satisfy the EEOC. Disparate impact or not, a blanket policy is grounds for review.
1. Your policy should always consider a) the nature and gravity of the crime, b) how old they are, and c) whether they are relevant to the type of work being performed. Additionally, employers might also consider any rehabilitation efforts and whether or not the applicant has held a similar position post-conviction before rejecting the candidate based solely on conviction information. In either case, it does not obligate the hiring manager to select them. There could be another valid reason they are bypassed in the hiring process; i.e. experience, skills, references, education, etc.
2. In any case where information in a consumer report is a factor in your decision, even if the report information is not a major consideration, you must follow the procedures mandated by the FCRA requiring pre-adverse action disclosure, time for disputes, and adverse action notices when necessary.
3. If you employ contingent workers, your policy should extend to your contract companies and any contingent workers. This is often overlooked and the potential risk is critical. Pay close attention to the gap between the screening policies applied to your permanent employees and the extended workforce, which includes such non-permanent employees as temporary workers, interns, contractors, seasonal employees and volunteers.
4. When you find yourself having to make exceptions to your policy, like conditionally hiring an applicant with a disqualifying factor, it’s a sign that either the policy itself and/or the order of screening and selection activities needs to be reexamined.
5. It is advised for employers to record and document the justification for their employment decisions, including the comparative details of the chosen applicant, especially if they are making the decision based in part or wholly on criminal history.
6. Sometimes there are good business reasons not to hire people with certain criminal records. Safety matters and cannot be overlooked. Every organization has a right to set standards but we live in a litigious society, therefore we must diligently prepare to defend our policies, if ever need be.
7. Sometimes there are good business reasons to acknowledge the error on a background check, get it corrected quickly, and proceed as best we can without letting the error negatively affect the applicant. Criminal records are entered manually by clerks on the county level. Human error happens. How you handle the mistake is what counts in the long run.
8. If you partner with a background checking company, make sure their priorities, values and policies either match or exceed yours. If they are not responsive and progressive, you should a partner who is.
9. Do not underestimate the risk posed by current employees. The single greatest area that employers leave themselves vulnerable is with their current employees. Fewer than half (43%) of U.S. employers are re-screening permanent employees after they are initially hired. Performing background checks and drug screenings on current employees is an effective risk mitigation measure that will ensure the safety and quality of your organization.
10. There are legal consequences for employers who fail to get an applicant’s written permission before requesting a consumer report or who fail to provide pre-adverse action disclosures and adverse action notices to unsuccessful job applicants. The FCRA allows individuals to sue employers for damages in federal court. A person who successfully sues is entitled to recover court costs and reasonable legal fees. The law also allows individuals to seek punitive damages for deliberate violations. In addition, the Federal Trade Commission, the Equal Employment Opportunities Commission, other federal agencies, and the individual states, may sue employers for noncompliance and obtain civil penalties.