There is no doubt that Background Checks have been in the news ~ error filled reports and falsified records that claim a background check was done top the list. It can be confusing. Here we will try to clear up some of this confusion and share our "common sense" take on it all........
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.
We will to attempt to break down these issues, discuss what they mean to you, and
give you “our 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 is that when asked early in the hiring process, those with past
records are being unduly eliminated from contention.
In order to address this issue, it is recommended that a background check should only be done after a
“conditional offer of employment” has been made. At that point, the applicant has been interviewed and the employer is already interested.
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, it is likely that others will also do so in the
near future.
Our Take: We agree with
the premise of “Ban the Box”.
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 an employment background check and rescind or move forward with 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.
We 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!
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. Source1
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).
Our Take: The
background check report is only as good as the source used to obtain it.
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!
Discover more about the difference between a Real Background Check and an Online Search Here!
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 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.
Our Take: Employer and Employee “Rights” need to be a part of
the same equation.
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”.
The bottom line is this ~ when it comes to Background Checks, at API we 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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