The Wide Open Controversy of Criminal Records and Employment Background Checks

There is an ongoing controversy about criminal records and pre-employment background checks. Some are alleging discriminatory practices, while others argue in favor of employer rights to hire who they want. This is not an issue that will go away soon, nor will it dissolve in water or be fully subjugated by legislation. There are far too many variables for any of that.

With the credit report issue alone, where in some states employers may be prohibited from running credit reports as one of their background checks in their pre-employment screening program, the language is such that a job applicant's credit history must be relevant to the job in question. So who makes that determination? The employment candidate who will be working in the financial department or who has access to sensitive databases and proprietary information is the applicant who show logical relevance. But what about the employee working in inventory who is willing to supplement his wage by stealing goods and services? And then of course there is the issue we hear from employers, regarding how much time they should spend in a down economy in a competitive market, fending off calls from employee creditors, adjusting wages for garnishment and all the rest?

I realize there are people who don't like to hear this, but this, nevertheless, is part of the paradigm, part of the working reality. Some out there, presumably with bad credit and in need of a job of wished ill on me, truly, rather than recognize that many employers see these issues as the obvious impediments.

Then of course there is an issue of criminal records. Bill Clifton writes about this in a recent article on Macon.com. The article, entitled Time to Revisit Company Background Check Policies has some thought provoking information. No doubt there are employees who discriminate or presume too much, acting against applicants with what not be entirely accurate information about the applicant's criminal history or other behavior gleaned from a background check.

Clifton cites fact when he remarks, "the Equal Employment Opportunity Commission (EEOC) has taken the position since 1985 that excluding individuals from employment on the basis of their conviction records has an adverse impact of blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population, and that such policy or practice is unlawful under Title VII in the absence of a justifying business necessity."

No doubt this is true. But what is not addressed is the numerous cases where the applicant did have criminal records and acts out violently on the job, hurting other employees. Then of course it is the employer who bears the burden of embarrassment, the presumed litigation and liability issues, the knowledge that the employer gave work to somebody who caused terrible havoc and damaged human lives. I think of the recent Amy Bishop case where this college professor allegedly shot six of her colleagues, killing three, because she believed her tenure was to be rejected. Only then did additional background checks, which were not conducted initially or had slipped through the cracks, revealed past aggressive behavior, including what at the time was declared the accidental killing of her brother while cleaning a shotgun. She has recently been charged with murder for that shooting.

This is but one of the more egregious cases where an employee snaps out in the workplace and hurts or kills other employees. Some have criminal records, and some do not. What is the relationship between previous criminal records, and violence in the workplace or the increased possibility of workplace theft? You tell me. Is there not a certain amount of logic involved between someone with prior criminal records and repeated offenses? Maybe. Maybe not.

I am one who believes that a fair number of people out looking for work deserve second chances. Coming from the sort of neighborhood initially were not everyone was nominated for sainthood, I well understand one can commit criminal acts and other indiscretions in their youth or in a tough economy, only to clean up their act and become decent and reputable citizens. In fact, as a background checking service, we often receive calls from people who committed misdeeds in their early lives, cleaned up their acts and became reputable citizens, invested in meaningful careers. They call telling us about a new policy involving background checks at their present employer, or asking, since they are out of work and looking for another job, if their previous criminal records will come back to bite them. In most cases, it is a relatively minor offense that occurred so long ago that no employer should care. Maybe some do, but I find that excessive.

Clifton refers us to two civic action groups and writes, " The National Employment Law Project and the National League of Cities have also weighed in on the issue of criminal record checks. A report issued July 2, “Cities Pave the Way: Promising Re-entry Policies that Promote Local Hiring of People with Criminal Records,” urges all cities and private firms to “ban the box,” by removing from the job application any question seeking information about an applicant’s criminal history. Under this policy criminal background checks would still be required “for those positions where it is necessary to ensure safety and security at the workplace” such as law enforcement and teaching positions. According to this report, removing the criminal history question from the job application would also help “maximize the applicant pool — especially in major urban areas where nearly one in three adults has a criminal record.”

By banning the box, the job applicant would admit to no prior crimes, leading the burden of discovery on the employer. The employer is then responsible for conducting a more thorough series of background checks at greater expense to assure that the employment candidate did not commit crimes in other than the more obvious geographic regions the employer would naturally be searching. So then, on one hand this avoids an upfront prejudicial judgment against the job applicant's qualifications, a good thing, but then it also leaves the door open for undiscovered criminal records that slip through a more limited series of background checks. Should the now-hired employee commit acts of violence, or steal or harass members of the opposite sex, then it is the employer who is accused of laxity.

I am then reminded of the job applicant who moved from one state to another in search of employment. The candidate had committed very severe criminal and sexual offenses against children and was listed on the sex offenders registry. Despite the legal mandates, when he moved he did not register in the new state as a sexual offender. He was just about to be awarded the job of parks sanitation operator where he would be cleaning up the city parks. Where children are playing. Luckily, his past was discovered. When confronted about his not checking the box for prior criminal convictions and asked why he hadn't registered with the state as a sexual offender, he responded, "I was trying to make a new start."

Some may find his attempt to start a new life admirable. I don't. If you think this sort of thing is rare or that it doesn't happen with alarming frequency, then think again. Just read the news headlines about public service and state agencies, law enforcement offices, that unwittingly hire convicted felons and sex offenders, due to the failure to conduct or adequately review employment background checks.

There is also the issue of employer rights. This is a tough economy and the competition or what business there is is pretty fierce in just about every industry. The more obvious issues of discrimination notwithstanding, it would seem that an employer has the right to hire employees he believes are the most qualified to help move its business forward or at least keep it afloat. Given there is a deep job pool in just about every industry, it would stand to reason that the employer will be more selective about who it hires. Most employers are in the business of business, and while they must regard the mandated compliance issues, few are in any mood to suffer from bad hires as punishment for a transcendental hiring policy.

There are those who have criminal records and those who are falsely accused of prior convictions. It is important to make this distinction. Those who were falsely accused or whose background check supported erroneous information deserve special consideration as they may have reasonable cause or proof of innocence. But then the majority of the people complaining about criminal records actually do have criminal records. In a tough job market where employers can recruit from employment applicants who have no criminal records and pristine work histories, then at what point must the logical choice prove insufficient?

Clifton writes..."The bottom line here is that credit and criminal record checks should not be used to screen out all applicants. A decision to reject an applicant as a result of a criminal history should only be made after conducting an analysis that includes the criteria set forth by the EEOC: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature the job held or sought."

With this, I agree. Employers should maintain recruiting policies that are compliant with the labor laws. And when it seems prudent, it doesn't hurt to give someone a second chance. Many people have risen to great heights, having been awarded a new lease on life.

Views: 289

Comment by Barbara Goldman on September 16, 2010 at 9:55am
In the past, I have had candidates turned down because of bad credit. Since the candidate wasn't applying for credit, but for a job, I am surprised this practice is legal.

There must be a way to determine a candidate's suitability, but credit scores should never be involved. As far as criminal background investigations, I'm not sure how I feel about that. If someone has a violent background, I would want to know. And, of course, I wouldn't let a thief run a cash register.
Comment by Sandra McCartt on September 16, 2010 at 10:36am
Commission of a criminal act is a matter of choice as i see it unless the person is a bonafide sociopath who does not know the difference between right and wrong. Other than perhaps a juvi conviction for vandalism there are too many people who made the choice to follow the law to mess with those who made the choice to break the law.

Risk management being what it is why should an employer take a chance on a convicted felon when they do not have to risk being held culpable for hiring someone who made a choice to commit a criminal act?

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