Background Checks – Caution!

The Equal Employment Opportunity Commission (EEOC) of the Federal Government went on record recently stating that people cannot be denied employment based solely on criminal histories.

Let’s face it, the EEOC wants to give ex-offenders practically every chance possible to get hired. This agency appears to totally ignore the fact that:

Employee theft is perceived by many to be the most severe problem facing industry today!

• Hayes International’s 24th Annual Retail Theft recently reported the following:

– On a per-company basis, one out of every 36 employees was actually caught stealing from their employer. (Based on total data base of over 2.8 million employees.)

– Over $47 million was recovered from employee apprehensions in 2011.

I guess companies should consider themselves lucky that the EEOC did not outlaw the use of criminal background checks altogether.  However, the agency did suggest that companies consider three things:

1) How long ago the crime was committed.

2) Nature of the crime.

3) How the crime might relate to the job.

The agency also said that companies should give ex-offenders an opportunity during job interviews to explain conviction circumstances as well as rehabilitation efforts.

Use Caution! Even if rejecting an applicant with a criminal conviction record for other reasons such as being unqualified for the job applied-for, or a convicted embezzler applying for a position that deals with money, make it a point to document your justification for not hiring that person.

Keep in mind that the EEOC and similar state agencies have expressed renewed interest in this area and are closely scrutinizing employers’ use of arrest and conviction records when making employment decisions.

Therefore, don’t be surprised to find a legal requirement stating that prior to questioning any applicant about his/her criminal history or making an adverse decision based on an applicant’s criminal history, employers who are in possession of criminal history records must provide a copy of those records to the applicant.

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Furthermore, states such as Massachusetts now require that employers who annually conduct five or more background investigations must maintain a written criminal record information policy. The policy must, at a minimum, require the employer to: (1) notify any applicant who is the subject of a background investigation of the potential for an adverse decision based on the criminal history records; (2) provide a copy of the criminal history records and the policy to the applicant; and (3) provide information concerning the process for correcting criminal records through the DCJIS  or the consumer reporting agency.

Complicated, Yes! That’s why employers must exercise caution in this area and are advised to consult experienced employment counsel to review your hiring and background investigation policies to ensure compliance with all applicable laws.  $   

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