Monday, December 30, 2013

A Year in Review: Background Checks & the Hiring Process



2013 has been a year of many changes in the Background Check industry.  Issues like “Ban the Box”, “full disclosure” requirements, and recent court rulings looking to curb the reach of the EEOC have filled the news.



These changes have been driven by the EEOC (Equal Employment Opportunity Commission).  They have made no qualms about making it their mission to end what they perceive to be inequities in using background checks when hiring.


The EEOC has focused their efforts on ending the “disparate impact” that they claim background check policies have on minorities.


The first step in reaching that goal has been “Ban the Box”.  It has gained widespread popularity, with many states already adopting legislation in its favor.  The gist of it is the call to remove the question of whether an individual has a past criminal record from the initial application.  It is only after a conditional offer of employment has been made that an investigation into possible past criminal activity can then be made.


The hiring company is also required to conduct the criminal background check under “full disclosure”.  All conditional employees must be made aware that an investigation is being made and what their rights are if a record is found that may impact their eventual employment.


The EEOC is adamant that companies rethink their process and be very specific about the kind of criminal activity that would prohibit hiring the individual.  Merely having a criminal record is not enough.  The employer needs to take into consideration the crime, how long ago the crime occurred, and whether the crime would keep the individual from safely performing the duties required in the specific job for which they applied.


Many believe that this puts companies in a difficult position.  The Attorney Generals from several states have criticized the EEOC saying that their policies put companies that use background checks during their hiring process in a Catch 22.  On the one hand they fear being sued by the EEOC, on the other they risk hiring employees that are unsafe to either their company, their existing employees, or their customers.


Recently, however, there have been court decisions that put the EEOC themselves in the cross hairs.   A Maryland federal court ruled in favor of a company sued by the EEOC for their background check practices.  This company had been experiencing an issue with employee theft, violence, and drug use.


To combat this, the company established a new policy requiring criminal background and credit checks on prospective employees.  The EEOC stepped in and sued the company for the “disparate impact” of their new policy.


Despite the EEOC’s use of two expert witnesses to support their claim, the court ruled in the company’s favor.  Citing the difficulties businesses face in hiring safe employees and the lack of evidence from the EEOC really proving “disparate impact”, the court granted a summary judgment for the company.


However, the 2013 filing of high profile cases against BMW and Dollar General Stores shows that the EEOC is not backing down on the issue of background checks in the hiring process.  This issue remains important and, in turn, companies need to pay attention.


I believe the effect of the EEOC’s guidelines is lessened for companies that already have a fundamental belief in doing the “right” thing.  Companies that focus on operating in the light of day by making sure every applicant is fully aware of their hiring process and their rights to dispute any inaccuracies found during the background check are ahead of the game.


It is entirely possible to believe in “second chances” and still use background checks to protect your company.  Using verifications to hire the best candidate should be the right of every business owner ~ as long as they keep in mind what is fair.


This should be the goal of every business, and not simply because the EEOC says so!


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I would also like to wish you, my faithful readers, all the best in 2014.  May you achieve your goals and remember to keep reaching for the stars!  Happy New Year!


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