What’s the true purpose of employment background screening?
Tuesday, May 03, 2011
The success of recorded human civilization has been built in part upon individuals living and working in harmony with one another. The modern world of the 21st century is far removed from the tribes and clans of ancient history but individuals still need to work together in order to accomplish survival objectives.
Then, as now, the social unknown was and still is that of human nature. All of the people on our globe are uniquely different while at the same time quite similar. Social harmony can be either cultural or legislated, but both formats are built upon individual decisions and choices in life. Ultimately we are responsible for those decisions and the choices that we make throughout our lives, be they good or bad. No amount of social tinkering or denial will ever change that fact.
This benchmark of our demonstrated behavior is measured as character. In earlier times when communities were small and our nation was less mobile it was difficult to hide personal actions and a reputation. Today’s diverse world is far different, requiring contemporary techniques because character still matters.
In recent years, the responsibility of employers to hire people who are not dangerous or violent has been heightened by the tort, negligent hiring. Nationally, the courts have ruled that employers owe a special “duty of care” to employees and third parties (e.g., customers or clients) to protect them from the harmful, intentional or criminal acts of their employees. There is no plausible defense for an employer who fails to take reasonable steps to background screen their prospective employees.
According to the U.S. Bureau of Justice Statistics Survey of State Criminal History Information Systems 2008, 65 million U.S. adults (27.8 percent) have had at some time in their life a criminal history. Does this then automatically disqualify them from employment?
Emphatically NO, based upon both a moral and legal basis!
Morally, because we are a nation that believes in second chances. People make mistakes in life based upon a plethora of reasons and to varying degrees. Traditionally our culture has recognized proper social repentance. However some insidious crimes are not redeemable such as murder, rape, robbery and child molestation. The recidivism rate on these crimes is well documented as high.
Legally, because denying employment based only upon having a criminal record violates federal and many state employment laws. An employers’ broad hiring practice of “no criminal records of any kind allowed” is a fast-track to costly litigation and large cash judgments.
The federal laws (and many states) are designed to strike a balance between an employer’s need to accurately know about the applicants’ past and the protection of that person’s rights. When the employer and their supplier (background check provider) follow the law the balanced system works as intended. For instance, in California criminal records for employment suitability are not reportable beyond seven years.
Additionally it is required under the federal Fair Credit reporting Act (FCRA) that all criminal records that are reported to an employer to be derived from the most up-to-date and recent information available. The only source for that data is the individual local county court where the case was prosecuted. Using the identifiers of subject name and date-of-birth, at a minimum, reduces the chance of inaccurate reporting to almost zero.
Where many problems commonly arise is with the improper use of database records as the primary reporting tool. The FCRA prohibits the use of database criminal records without first confirming the data at the county court level, a step that is often skipped by cost-conscious employers and their criminal record suppliers.
Typically the database records contain inaccurate, incomplete and “stale” information that may well have changed at the court level since the reports were compiled. Often a database record will only list an arrest without a conviction, leading to the possibility of an improper conclusion being drawn about the applicant and the resulting illegal adverse hiring decision made. Also, not all of the 3,600 county courts across the USA provide their records to the proprietary database suppliers, resulting in the report indicating a false “no records found” because a particular county was not included in the assortment of queried jurisdictions.
Applicants have civil rights and legal protection in place to keep the reporting legitimate. Before a negative hiring decision is allowed to be made the applicant must be provided the “Pre-Adverse Action” notification whereas they can contest the accuracy of the criminal record report prior to the final decision being made by the employer. Failure on the part of the employer to follow the Adverse Action steps is a violation of the applicants civil rights under the FCRA.
Recently the federal Equal Employment Opportunity Commission (EEOC) has begun to aggressively look at hiring practices that are discriminatory and illegal. Those employers that choose to ignore the sprit of the law (FCRA) while knowingly and intentionally violating the rights of applicants should be prosecuted to the fullest extent possible. Our national economic recovery looses when otherwise qualified people are denied an opportunity based upon a violation of their right to fairness.
Conversely an employer has a responsibility to protect their business from the predatory actions of an unfit employee. During the interview process, the employer is forced to view the puzzle of the applicant with only the limited images supplied by the applicant. Legal and compliant pre-employment background screening enables an employer to make an informed hiring decision based upon demonstrated behavior and facts. When utilized correctly, pre-employment background checks promote safety and security in the workplace by supplying the missing pieces of the puzzle.
Not every applicant is qualified for every position. A criminal history of assault might preclude an individual from an unsupervised position. Convictions of theft or embezzlement create a lack of trust in an employers mind. Employees with an illicit drug habit do experience a higher rate of work-related accidents, increasing Worker’s Compensation rates. Ignorance of the facts is no defense in court, and usually will result in an empty bank account that can destroy any business.
While we are a redemptive society, good business sense dictates and requires proper due diligence in hiring. The solution is simple; do it right the first time and legally hire the most qualified people to grow your business. Hire for character, the kind that you can be sure of. X46N4T9U8M5W
- Background Screening
- criminal convictions
- federal Equal Employment Opportunity Commission
- criminal records
- pre-employment background checks
- U.S. Bureau of Justice Statistics