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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on use of arrest and conviction records in employment decisions.
As a result, the new EEOC Enforcement Guidance aims to prohibit employers from using “blanket prohibitions” against hiring anyone with any kind of a criminal records, no matter how old the conviction and no matter what the prior offense may have been. When making employment decisions based on conviction records, employers should take a three (3) factor approach:
More specifically, the Enforcement Guidance provides two circumstances in which an employer’s criminal conviction policy will “consistently meet” Title VII’s “job-related” and consistent with business necessity” defense. According to the EEOC, these circumstances include:
Other defenses for employers to consider involve compliance with federal or state laws that are specific to their business. For instance, the FDIC Act requires banks to conduct criminal background checks on applicants and restricts their ability to hire individuals with certain conviction histories. Under these circumstances, this would be valid defense for claim of discrimination brought by an applicant or employee under title VII.
HR Professional Opinion
With the new EEOC Enforcement Guidance in place, here are some best practice tips and action steps for employers to consider:
Best Practice tips for employers:
Employer Action Steps:
(Univ. of Pa. photo)
On April 26, 2012 a vice dean of the University of Pennsylvania School of Education resigned after questions of his academic background arose. Doug Lynch, a trusted faculty member at the University of Pennsylvania, claims that he has a doctorate. His resume states that he earned his doctorate from Columbia University in 2007, yet Columbia said that he has not yet earned his Ph.D. Additionally, on the Fels institute of Government webpage, Lynch was listed as “Dr. Lynch.”
Prior to quietly resigning following an investigation by the University of Pennsylvania into the authenticity of his claimed doctoral degree, the Philadelphia Inquirer published an article about Lynch being placed on leave. Read more
HR Professional Opinion
Fabricating facts and figures on a resume is fraud – and while it is not necessarily a crime, it is certainly a “misdemeanor offense” in the working world. Resume fabrication commonly includes lying about receiving a degree or certification, exaggerating numbers like GPA and dates worked on a particular project or job, inflating titles, providing a fake address, etc.
Those who get caught not only tarnish their reputation, but bad press is directed towards the organization that hired the individual guilty of fraud. Basically, resume fraud doesn’t look good for anyone, hence the importance of conducting education verifications in a pre-employment background check.
This is not the first time we’ve seen organizations in the limelight for hiring employees with fabricated backgrounds. Remember these?
Over the past five years, the hit rate for criminal background checks has been on the decline as more nonprofit organizations background check their new hires. A recent study’s, data showed that from 2007 to 2011, more than 5.4 million background checks we conducted by nonprofits and 22 percent of those checks resulted in criminal hits.
Of that 22 percent (approximately 479,000), background checks revealed very serious kidnapping, murder, sex-related and drug-related offenses. While it is shocking to know that criminals who have been convicted of kidnapping or molestation could be working amongst children, elders and people in need, we know that criminals go where they know they can get in “under the radar” – organizations [they know] do not conduct background checks.
In organizations working with children, such as the Boys & Girls Clubs of America, background checks are a must; the study found that 1,021 of the criminal hits were registered sex offenders, 603 convictions for kidnapping and 1,176 murder offenses.
What’s more is that between 2007 and 2011, 22 percent of those criminal hits also included 91,607 drug-related offenses including possession and distribution and 10,438 sex-related offenses. These figures are certainly eye-opening, but the good news is that these were hits, and thus these individuals were barred from employment at the nonprofits where they applied to work. Additionally, the number of criminals has declined over the past five years by 7 percent, according to the study.
The drop in criminal hits is attributed by the nonprofits’ use of background screening programs. When criminals know that nonprofits are conducting background checks, they seek employment somewhere else, so it is important for nonprofits to speak with background screening providers in order to mitigate risk, protect their reputations and those they seek to help.
Imagine you discovered the owner of your child’s daycare center was a convicted felony on such crime as battery, assault, domestic violence, grand theft and even manslaughter. Would this information prompt you to pause or re-consider the daycare center you select?
While you might assume that the state in which you live does a thorough background check on daycare owners and employees, you’ll be surprised to know that only 11 states in the U.S. conduct full background checks on potential daycare workers.
In an investigative report conducted by Dateline’s Chris Hansen, many daycares’ true colors were exposed when the investigative team questioned daycare owner’s criminal histories. In one case, it was revealed that Brighter Beginnings Pre School in Clearwater, Florida owner, Melissa Van Cleave has convictions for battery, domestic violence and a DUI, yet is still able to run her daycare.
Under The U.S. Equal Employment Opportunity Commission (EEOC) guidelines, arrest records should only be used as a bar from employment if pertinent to the position. Child care-related crimes such as sex abuse, battery and manslaughter, for example, could be a bar from employment in the child care industry. Even if your state conducts a background check on a daycare center, it’s important as a parent to ask the right question such as the type of background check conducted, do research, and occasionally visit the daycare unannounced.
Here are some surprising statistics about background checks and child care providers:
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Sources:
http://childcare.about.com/od/childsafe2/a/backgroundcheck.htm
Most often the First Contact HR blog reports on trends, topics and news relating to background screening and other human resource practices for businesses. However, the need to background screen is not only pertinent to companies seeking to screen employees and applicants, but also to individuals and families seeking to hire a responsible person to provide part-time or full-time services such as childcare, elder care or home-cleaning services.
The need to hire responsible childcare providers is on the rise as the economy continues to rebound and parents find themselves once again gainfully employed. The decision to hire a qualified individual to watch over children while parents and or guardians are absent is one that should not be taken lightly.
The need to screen the individual who will provide childcare to minors is very important and highly recommended. Only two months into the year 2012, and the U.S. has already seen a high number of breaking news stories dealing with unfortunate incidents involving babysitters.
Here are some recent headlines and stories:
Montco Man Charged With Molesting Girl While Advertising Online As Babysitter
After advertising for babysitting jobs, a local man is accused of molesting a child he was supposed to be caring for. We are now learning our reporting is prompting a major online investigation. Read more
Babysitter sentenced to 40 years in prison for toddler’s death
A Springfield woman convicted of murdering an 18-month-old boy for whom she was babysitting was sentenced Tuesday to 40 years in prison. Read more
Babysitter sentenced to 10 years for shaking baby
Washington state woman, who admitted to violently shaking a baby left in her care, received the maximum sentence of 10 years. “She murdered who my child was supposed to be,” said the child’s mother, Jaime Thompson. Read more
Babysitter pleads not guilty to murder
The 28-year-old Hardin County babysitter who police say beat to death the little girl she was caring for answered to her upgraded charges. Ashley Chapman pled not guilty to murder Tuesday morning. Read more
So what can parents do to protect their children and ensure that those they interview or even find online are trustworthy? Certainly, you can start by hiring a reputable firm to perform a background check on the individual.
Here are some things to keep in mind when performing a babysitter background check:
With sites like Sittercity.com and Care.com, it’s impossible to know the full history of an individual you find online – even after the interview process. Let a background screening and human resource consulting firm help you be certain that you’ve hired the right person to childcare to precious members of your family.
In a response to a lack of communication during the online application process, the National Law Forum reports that an increasing number of job seekers are suing employers who are in violation of the Fair Credit Reporting Act (FCRA).
In a recent class action lawsuit against K-Mart, prosecutors say that the online applications that they filled out for positions at K-Mart are in violation of the FCRA. The retailer allegedly utilizes buttons on their online applications that either say “decline” or “accept.” These buttons are the only means offered by K-Mart to obtain an applicant’s consent to submit to a background. Apparently, this simple button click is not the correct way to obtain a background check authorization from an applicant.
According to the Fair Credit Reporting Act, in order to provide full disclosure to a job applicant:
a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
The simplicity of a “decline” or “accept” button does not constitute a written authorization, prosecutors say. Employers who utilize online job applications argue that under the Electronic Signatures in Global and National Commerce Act (E-Sign), electronically authorizing background checks are permitted. However, E-sign only applies to consumers or customers, not job applicants.
HR Professional Opinion:
(The comments below are part of First Contact HR’s opinion column where we offer the writer’s opinion on this post’s specific topic and thus should not be taken as legal advice.)
While it is certainly okay to obtain a background check authorization from an online job application, it is important to keep in mind that the authorization must:
Regarding the K-Mart matter, it appears the company failed to satisfy the FCRA requirement stated above by requesting applicants merely to click a mouse button labeled “accept” or “decline.”
Although an electronic signature may prove to be a legally valid authorization to conduct a background check (under the FCRA), job applicants may be reluctant to accept the electronically-signed authorization and may require an actual hardcopy signature. To be safe, it might be prudent to stick with hardcopy signatures that are stored electronically with respect to background check authorizations.
The Costa Concordia, after the cruise ship ran aground and keeled over off the Isola del Giglio. January 14, 2012. Photo: AFP
The Costa Concordia, a luxury cruise ship sailing across the Mediterranean Sea, ran aground just off Italy’s western coast January 14, 2012 and tipped over, leaving 11 dead and 21 still missing as of Wednesday.
News of this incident has left the rest of the world to question how this devastating event occurred and who is to blame. At the forefront of the investigation and a media whirlwind is the stricken ship’s 52-year-old captain, Francesco Schettino. Currently under house arrest, Schettino is facing criminal charges for allegedly steering the Costa Concordia off course and then abandoning ship once the vessel struck land.
Prosecutors suspect Schettino deliberately went of course, endangering the lives of passengers and crew on board, but now are left to wonder about the cruise line’s hiring process. Costa Cruises, recognizes that Schettino may be the one at fault, stating on its website, “While the investigation is ongoing, preliminary indications are that there may have been significant human error on the part of the ship’s master, Captain Francesco Schettino, which resulted in these grave consequences.”
Who does the hiring for these ships? What are the policies and procedures put in place to make sure only the best captains are hired? These questions are still pending answers as an investigation is underway, however Maritime Lawyer, Jack Hickey observes that “[you] want to screen out the risk-takers, [you] want to screen out the ‘hot-doggers,’ [you] want to screen out the people who are not willing to take responsibility.” Some background screening companies can provide industry-specific skills, knowledge and aptitude testing, which can measure requirements for certain jobs.
When the Costa Concordia was launched in 2006, Schettino was described as a favorite with the ship’s passengers, especially its women. Viewed as a debonair, yet a risk taker, its not surprising that all evidence points blame on the ship’s captain for responsibility for the accidents.
In the wake of the accident, Italian Coast Guard Captain, Gregorio De Falco said to Schettino in firm words, “Go to the bow. Climb up the emergency ladder and you co-ordinate the evacuation.” He continues, “You must tell us how many people, children, women and passengers there are and the exact number of each category.”
Schettino ignored policies dealing with emergency situations (leaving passengers being is regarded as the “first law of the sea”) and orders from Port Authority to go back to the ship to coordinate operations. As a result of the captain’s poor choices, a reported $450 Million luxury cruise ship is destroyed, a company’s reputation is tarnished and more importantly, life is lost.
It’s well into the holiday season now, and a familiar sight to see while shopping for those last minute holiday gifts are the Salvation Army Red Kettle bell ringers. If you’re feeling the spirit of the season and you decide to donate to the cause, it may surprise you to hear that the Salvation Army did not perform a background check on the volunteer taking your money. See video below by WKYC:
After applying to a volunteer coaching position in May 2010 at Juaniata College in Huntingdon, PA, college officials who did their due-diligence turned Jerry Sandusky down. Hiring personnel at the college denied Sandusky the position after conducting a background investigation and were made aware of the ex-Penn State assistant coach’s alleged improper behavior at a previous school.
Sandusky is currently at the forefront of a sexual abuse scandal, where he is being charged with 40 counts of molestation charges towards young boys over a 15-year period.
Although he failed a background check and was told by the Pennsylvania college’s administrators that they did not want him associated with their sports program, Sandusky still managed to serve as a “consultant.” Read more