There has been a surge in legislation across the U.S. with the goal of curtailing employer use of criminal records that bar employment opportunities for ex-offenders. Take for example the new EEOC guidance on the use of arrest and conviction records and the proliferation of “ban-the-box” laws.
With the enactment of the 2010 Massachusetts Criminal Offender Records Information (CORI) Reform bill, employers face a wave of changes in their use and access to criminal records.
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:
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.
Paula Deen. Photo: AP photo
After celebrity chef Paula Deen refused to pay a former restaurant worker to keep quiet, Lisa Jackson has decided to file a lawsuit against Paula Deen for allegations of sexual harassment and racial discrimination. Paula Deen co-owns the restaurant, Uncle Bubba’s Seafood and Oyster House in Savannah, Ga. with her brother, Bubba Hiers.
Deen is under fire for allegedly sexually harassing and inflicting assault and emotional distress on her employees, using the N-word and creating a hostile working environment. The lawsuit comes after a recent wave of criticism following Deen’s public coming out with her having Type 2 Diabetes.
In one incident, Jackson alleges that Hiers requested that she bring to work pornographic pictures of herself. In her lawsuit, Jackson claims Hiers viewed Internet pornography at the restaurant, drank on the job, made sexually charged comments to her and other staff members, kissed her and spat at her. Jackson, further alleges that both Deen and Hiers frequently made racist comments and used the N-word.
Jackson is seeking unspecified damages.
Photo: AP photo
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
First Contact HR staff answers common questions we get on background checks, drug testing and other HR industry practices. Got a question? Ask us at info at FirstContactHR dot com
Question #8: Should I fire an individual for having a positive drug test result?
Every company has different policies. Some find termination as the only answer for a positive drug screen, as drug use is an immediate breach of company policy. On the other hand, many companies now offer Employee Assistance Programs (EAP), which include drug and alcohol counseling and treatment.
For more questions and answers, visit www.FirstContactHR.com and just Ask!
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Each week we will be answering common questions we get on background checks, drug testing and other HR industry practices. Got a question? Ask us at info@FirstContactHR.com
Question #3: Why do I need a “background screening” firm? Isn’t most information about a person’s background online?
Contrary to popular opinion, criminal and other searches are not ‘available online. Very few county court records are accessible online, and then only with special access procedures and fees. Most of the advertised sources of online criminal history do not come directly from the courts, but is retrieved from databases that are not always accurate or current.
Always ask if their searches are direct from the originating source or are they simply pulled from a purchased database. To learn more about internet searches, read a previous post on Internet background searches.
For more questions and answers, visit www.FirstContactHR.com and just Ask!
When bringing a new employee on board, there’s no telling what their previous employment or criminal background was, apart from what they told you. As a hiring manager, it can sometimes be difficult to read a person who may be lying during the interview process or even trust that the background check you did was 100% accurate.
Sometimes state repositories for criminal convictions are inaccurate and not up to date, so companies can end up hiring individuals with criminal backgrounds. Another loophole in criminal record background checks is that companies will only conduct the search within the hiring state. Nowadays, most employers will conduct background checks on new employees, but if the search is limited to only the current state of residence, they could end up hiring employees with criminal records – some of them with very serious charges.
Often times, criminal records are not discovered if people committed the crimes out of state. Alternatively, employers can better protect themselves and their clients by conducting more comprehensive criminal record searches, to include but not limited to:
Change of name and address also makes it difficult to background check employees or potential employees for criminal history. With a social security trace and/or address history search as part of the background check, hiring managers can make sure they are searching the right names, aliases, counties and states for a more complete picture of an employee’s background.
Background check loophole exposed: MyFoxBOSTON.com