Background Checks – What’s Going On, What It Means to You, and My “Common Sense” Take on it All!

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There is no doubt that Background Checks have been in the news ~ even government contractors have been charged with falsifying records.  It can be confusing.  Here I will try to share my "common sense" view on it all........



For me, concerns about Background Checks boil down to these 3 issues; the “Ban the Box” movement, concerns of accuracy, and the battle between Employee and Employer Rights.

I am going to attempt to break down these issues, discuss what they mean to you, and give you “my take” on it all. 

Issue 1:  “Ban the Box”

“Ban the Box” is the movement to omit the question “Have you ever been convicted of a felony or misdemeanor” (or a question similar to this) from the employment application.  The premise for this movement is that if asked this early in the hiring process, those with past records are being discriminated against.

The thought now is to only address the issue of a past criminal record after a “conditional offer of employment” has been made.  At that point, it is acceptable to perform a background check to determine whether the applicant has a criminal record.

There are states, cities, and municipalities that have already passed laws to “Ban the Box”, and it is important to know if yours is one of them.  However, I see others also doing so in the near future.

My Take:  I agree with the premise of “Ban the Box”. 

I think that until a company has determined, using other factors such as skills, personality, and education, that the applicant may be a good fit, there is no need to check for criminal history.  At that point, you as an employer then have the opportunity to run a criminal background check and rescind the offer of employment based on the results.

It is important to note that guidelines on how a company can use a criminal background check and remain in compliance have also changed.  In order to rescind an offer of employment, it needs to be determined in advance what type of criminal record would prohibit an employee from performing the job safely.  If the criminal record discovered does not fall into that pre-determined category, it should not be used against the applicant.

I believe that a criminal record should not automatically exclude anyone from an opportunity of employment and a “second chance”.  In banning the box, those with a record are given the chance to enter the application pool on equal footing.

However, there are exceptions to this.  There are industries where any type of criminal record, by law, prohibits someone from employment.  In those instances, “Ban the Box” cannot be applied.

Read more about "Ban the Box" and Second Chances Here!

Issue 2:  Accuracy

Take a look at this story:  

Darlene T. Martinez was offered a housekeeping job at a local hospital.  The final step was a criminal background check, standard procedure in the hiring process. Martinez, 57, doesn’t have a criminal record, so she was not concerned and felt certain the job would soon be hers.

Martinez now believes a faulty background check cost her that job.

During the background check process, Darlene T. Martinez was mistaken for Darlene Foster Ramirez.  Foster Ramirez had been found guilty in 2009 of a dangerous-drug possession charge in Navajo County.

The hospital rescinded its job offer.  Martinez was left without a job and the task of trying to make sure this record did not follow her.  Martinez has since filed a lawsuit in the U.S. District Court against the company that performed the background search citing that the company did not follow correct procedure and for violating the Fair Credit Reporting Act.

This case illustrates ongoing questions about the accuracy of background checks.  Errors, like in the Martinez case, can keep innocent individuals from obtaining employment and cause great problems for the wronged party.

Under current guidelines, applicants are required to be notified in writing when a positive criminal background check has been reported.  The applicant is then given the opportunity to dispute the report.  The reporting background check company is then given 30 days to investigate and ensure that the information is correct or to report that an error has occurred (according to Martinez this did not happen in her case, although eventually her record was corrected).

My Take:  The background check report is only as good as the source used to obtain it.

I believe the proliferation of “online, instant” background checks has been a major contributor to the rash of accuracy complaints.  Many of these online databases are incomplete or outdated.

These online records can be used as a starting point, but a good background check company will go farther.  Any record discovered online, also needs to be confirmed directly through court records.  The initial information can then be cross-checked for matches to name, date of birth, and other identifying information.  Performing this additional step goes a long way towards providing more accurate criminal record reports.


Discover more about the difference between a Real Background Check and an Online Search Here!

Cartoon by Dave Carpenter

Issue 3:  Employer vs Employee “Rights”

It seems that the pendulum has swung in the favor of the employee or applicants over the employer on the issue of background checks.  Applicants with past criminal records are now afforded a more equal playing field than ever before.

Employers feel their right to hire “the best candidate” is being impaired.

Where does the reality fall?  It most likely falls somewhere in between.

Applicants can now be hopeful that their “past” will not haunt them for life.  Even those with a prior criminal record are afforded the opportunity to apply for a job and at least get their foot in the door.

Employers are concerned about safety and liability, and I feel these concerns are not unfounded.  The current guidelines for hiring do not take into account any possible litigation that may occur due to the hire of an “unsafe” candidate.

 

My Take: Employer and Employee “Rights” need to be a part of the same equation. 

I believe that the guidelines should prevail in the areas of “ban the box”, accuracy, and the recourse given to dispute a record.  These are “common sense” procedures that really protect everyone, employee and employer alike.

However, there needs to be some consideration given to the rights of an employer.  The current heavy-handed approach cannot work.  Employers need to have rights protecting them from undue litigation when hiring according to the guidelines.

Employers also need to have more latitude in deciding what criminal offenses are prohibitive to doing the job safely within their own company.  Existing laws governing discrimination in hiring practices will still ensure applicants are not dismissed or not hired due to things like race, sex, physical handicap, or being a member of any other “protected class”.


Best Practice ~ Approach Background Checks with Common Sense!  "Tweet This"

Bottom line, in the issue of Background Checks, I believe a little “common sense” can go a long way.  It does not need to be employers vs employees.  The guidelines can be utilized to protect all and ensure a safe and equitable workplace.  All it takes is a willingness to work together to achieve what should be our common goal!


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