Over the past twenty years, background checks have become increasingly powerful. The core of a good background check is information, and information everywhere has become easier to access with the rise of databases. This has been very disruptive to social policy, and governments have responded with new laws. An increasing emphasis on fairness, racial equity, and full economic access means that these rules are continuing to develop over time. Failure to understand them can be an expensive mistake.
Criminal records are created in local courthouses. An old, traditional search would go through the following steps:
Figure out where the subject has lived, by using their social security number.
Go to any courthouse where they had lived within the past 7 years, and look for any criminal records. Going to courthouses takes time and money, so limiting the scope of the search to 7 years kept costs down. (In some cases the client could get a 10 year search for an extra fee.)
There were limits to this type of search. It might miss crimes committed out of town. Most importantly, it meant that crimes over 7 years old tended to be forgotten. While the Fair Credit Reporting Act (FCRA) generally allows convictions to be reported indefinitely, it was cost prohibitive to search too far back for most candidates.
Background checks changed once some enterprising companies began buying court records in bulk and entering them into searchable databases. Suddenly it was very easy to find records of crimes committed 20 years ago. Minor offenses could become a permanent bar to employment. In a competitive market, people found that a mistake made decades ago prevented them from ever getting a job or renting an apartment. And legislators started to notice.
The fundamental idea behind “ban the box” is banning the checkbox on employment applications where the candidate is asked, “Have you ever been convicted of a crime?” It is just too easy to filter out applications that check the box. Laws addressing this require employers or landlords to wait until the first interview, or in some cases until a conditional job offer was made, before asking about or looking into criminal history. Ban the box laws have developed piecemeal over the United States, and they are not consistent. There are many places where rules exist at the local and state levels — and the local ones are often the most restrictive.
Some jurisdictions have taken this philosophy further, seeking to avoid any discrimination against individuals with a criminal history. A notable example would be New York City’s Correction Law, Article 23A, “Licensure and employment of persons previously convicted or one or more criminal offenses”. An employer may not discriminate against a candidate unless:
There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
NYC does not permit background checks until a provisional job offer has been extended. A candidate with a criminal conviction who is denied a job may request a written explanation from the employer, who has 30 days to respond. Employers who violate this rule may be criminally liable with imprisonment of up to one year, and/or a fine of up to $500. Add in liability for lost wages up to $125,00, and a civil penalty of up to $250,000 for willful violations, and it is easy to see why employers are extremely wary.
Illinois may be poised to follow, with Senate Bill 1480. This bill would define use of conviction records in an employment-related decision as a civil rights violation, unless
there is a “substantial relationship” between the criminal offense and the position, or
it would involve an “unreasonable risk” to property or the safety of a specific individual or the general public
As with New York City, employers are guided to weigh various factors such as the length of time since the conviction and the circumstances surrounding it.
It has always been sound policy to look at the circumstances of someone’s criminal record before rejecting them on that basis. The Equal Employment Opportunity Commission (EEOC) has made this clear for many years. The compliance rules will continue to evolve. As an employer, you should always start with a comprehensive background check authorization form that includes the necessary documents for your state. And when in doubt, consult with legal counsel.
We are not lawyers and this post does not constitute legal advice. We are happy to answer general questions about our background check service.
According to the lawsuit, Amazon initially offered Theo Feldstein a job. They then ran a background check on him through Accurate Background Inc. In this case, accurate was a misnomer — there were criminal convictions incorrectly listed on the report. Amazon withdrew the job offer, without giving him a chance to get things corrected, or providing him with a copy of the report as required by the Fair Credit Reporting Act. Feldstein claims he “happened to find out” that a background check had been received on him by Amazon. (It’s been a bad year for Amazon: a similar lawsuit was filed in April 2015.)
This is not the way things are supposed to happen. Job applicants have the right to know that they have been investigated, and that negative information may have been provided. The sad fact is, public records are imperfect. With thousands of county courts across the country, many of them not automated, errors can and do occur. Even worse are problems of identity confusion; as social security numbers are increasingly removed from case records, the risk of finding someone else with the same full name, date of birth, and even residence history increases.
The other night, a friend told me about a debate in his homeowners’ association. Some members wanted the association to require contractors to certify that they conduct criminal background checks on all new hires. Others think that’s extreme.
August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender hired to do service work in her home. Sue had contracted with a major department store to have the air ducts in her home cleaned. Burdine’s did not conduct criminal background checks on those workers they sent into their clients’ homes. Sue’s life is over. Had a criminal background check been done, Sue might still be alive today. The Sue Weaver C.A.U.S.E. was created to promote Consumer Awareness of Unsafe Service Employment.
The organization makes two very good points on the site. First, criminals often use their employment to find their next victim. And, second, “bonded and insured” doesn’t mean that a background check has been done.
That’s a good case. Make sure companies you do business with and who will send people into your home are looking out for your safety.
And, if your business does a criminal background check on everyone you hire, it’s something you should be telling your customers about. After all, you’re helping look out for their safety.
By making sure that a national criminal background check is part of the process for everyone you hire, you’re doing something to keep your employee and your customers safe. So tell people about it. It can also be a way to set yourself apart from your competition.
The Federal Drive, a show on Federal News Radio recently offered the following advice to job seekers: Background check in your future? Don’t lie! One of the things that I got out of the material is the difference between the federal government and other employers.
The show included comments from Debra Roth. She’s a partner in the firm of Shaw, Bransford and Roth, that specializes in Federal employment law. Here’s just one comment. “Lying to the federal government almost always, in current times, will get you criminal charges.”
That’s probably not true for your company. The biggest stick you’ve got is that lying on an application is cause for termination. But there is something that the feds do can make your hiring and background check process more effective.
The government uses questionnaires to gather information. That’s a good process for two reasons.
First, it assures that you ask the same questions in the same way every time. And the answers will be in the applicants own handwriting, so there’s no chance of “misquoting” as can happen when you ask the questions in an interview and write down the response.
Here’s another idea you can use. The feds use two different questionnaires.
Obviously, you don’t have any “national security positions” at your organization. But you do have positions with access to money or to confidential records.
Creating separate forms and process for sensitive (access to money or to confidential records) and non-sensitive positions allows you to ask different questions and run different checks based on the position. That should make your process more effective and consistent, which is a good thing in today’s lawsuit-happy world.
A jury recently ruled that negligence by the Housing Authority in a North Carolina city led to an elderly woman’s death at the hands of her crack cocaine addicted neighbor in 2007.
The sons of the woman asked for more than $10 million in damages. The “negligence” was not conducting a proper background check on the neighbor. If you’re a landlord or you hire people, there are three lessons about background checks you can learn from this story.
You can be sued for not conducting a proper background check if a person you select as a tenant or a person you hire commits a crime of violence. If you lose the case, the award could be huge.
“Proper” means doing a check using a reputable service like SentryLink that offers national coverage. The Housing Authority did a background check, but it was only of North Carolina records.
You should have a standard procedure to check out prospective tenants and employees. If you don’t, put that at the top of your To Do list. Your procedure should include background checks and other steps to keep the dangerous and deceitful away from the good people who rent from you or work for you.
Once you have a procedure, follow it. Use checklists and other simple aids to make sure you do all the steps in the proper order every time.
This isn’t just about preventing lawsuits. It’s about protecting the people who rent from you and the people who work for you.
The April 2010 issue of Risk Management has a great article titled: Finding and Fixing Corporate Misconduct. After noting reports that misconduct had declined during 2009, the Corporate Executive Board (CEB) says the following.
According to the results from more than 300,000 employees in over 75 countries, this “decline” in misconduct during 2009 is actually misleading, as it pertains to less severe and risky behaviors such as the misuse of company resources or other ‘inappropriate behavior.’
In other words, no matter what you may have heard, there’s pretty good evidence that more serious forms of misconduct actually increased last year. What can you do about it?
The CEB says that you want to create a “culture of integrity.” And the most important thing to count on is what they call “Organizational Justice.” Basically, it’s the perception among employees that you mean business about your standards and rules.
The CEB suggests three steps for creating an atmosphere of organizational justice. Here they are with my idea of what that means in an everyday, practical sense.
(1) Equip managers to decisively deal with unethical behavior.
Equipping managers means giving them the tools to hire smart, including a background check for any position of trust and pre-employment or routine credit checks for appropriate positions. It also means supporting managers when they make tough calls.
That’s the sort of thing you read often on this blog. But the CEB’s next two steps are also important and don’t get nearly enough attention.
(2) Show the whole employee population-using real instances from within the company-that the company deals decisively with misconduct.
You can’t skirt this one. The only way that your people will know you’re serious is by what you do. Talk will only take you so far.
(3) Close the loop with employees who report misconduct so that they know that appropriate actions were taken.
There are two big reasons why honest employees don’t report wrongdoing. They may see it as dangerous. And they may see it as a waste of time. Keep them safe. Make sure they know that their conscientious behavior had a result.
At the end of the day, this is all about walking the walk. If you do that, it will make your talk about honesty and integrity more powerful. If you don’t that talk will just be empty words.