By: Dona DeZube
In today’s business environment, background screening has become a crucial tool for screening out undesirable employees and creating a safe workplace.
Hiring due diligence calls for an accurate, thorough and legal hiring process that takes into account varied state laws as well as Federal regulations.
Widely accepted among large companies, background checks have expanded to smaller companies as part of an effective hiring practice that often includes contractors and temporary workers as well as international candidates.
When evaluating applicants whose background checks bring up criminal convictions, it is advisable to follow EEOC guidelines that suggest companies consider the severity of the crime, the relevancy of the crime to the position and how long ago the incident occurred.
To find out more about when to do a background check, the information it uncovers as well as who to screen, we spoke with Kelsey Corcoran Galarza, director of Product Segments and Services for HireRight, a Monster business partner that provides HireRight Background Checks for employment purposes.
Q: Why do criminal checks?
A: The best indicator of future behavior is past behavior, so you want to look for past indications that a job applicant might not be an employee you want to have. It’s common for employers to look at screening as a way to reduce the risk of workplace violence, theft, fraud, and negligent hiring suits. Also, the cost of employee turnover is high, so the more informed you can be before making a hiring decision, the better.
Q: A lot of courthouse records are online now, can’t I just do the research myself?
A: Despite what you see on TV, there’s no single repository for criminal records. Data is filed in different records, housed in different courthouses. You have to look in the right places and you have to know the information you find is information about the right person.
A company such as HireRight will go to case records and look for something tying the applicant to the court record -- a previous address for example, and will work to identify any physical identifiers that would indicate that the record belongs to someone else.
Q: When you turn something up, do I have to tell the applicant?
A: If you decide not to hire based in whole, or in part, on the results of a background check, you have obligations as an employer, under the Fair Credit Reporting Act (FCRA) to let the applicant/consumer know of your intent and give them a reasonable time to dispute the information. This process is referred to as “pre-adverse action.” If the information is not disputed or corrected after a reasonable time, you can take adverse action and send a letter telling the applicant what you’re doing. There are additional disclosures required by the FTC as part of this procedure.
Q: In what states or situations can I refuse to hire based on criminal background? Does it have to be a job where finance or cash is involved?
A: In general, it’s important to establish a screening policy that explains why you conduct screening and connects the searches being conducted to the specific requirements of the organization and the position being hired for. You should tie your screening policy as closely as possible to the specific job to protect yourself against discrimination charges, but also so you get the right person for the job. If someone has a prior record of possession and they’re applying for a job maintaining landscape it may not be an issue.
If you can, get legal help making your policy and follow it consistently -- you can’t decide to background screen a guy because he has tattoos and wears earrings, but not screen the girl who looks “nice” to you if both of them are applying for the same position.
Q: Do I have to screen everyone or no one?
A: No, you can choose to screen only some categories of employees, as long as everyone in the category is treated the same. For example, you can screen chief financial officers, but not administrative assistants.
Q: Does it matter where my company is located?
A: State laws vary. The rules are different about the sort of information you can use in your decisions. For example, in California, you can’t use a conviction for certain marijuana offenses that is older than two years.
There are also differences in what the states put in criminal records. Almost all states contribute to a national sex offender registry, but they report different levels of sex offenses.
Q: Does the crime have to be related to the job?
A: Under Equal Employment Opportunity Commission (EEOC) guidelines, the crime does have to be related to the job. Otherwise, you may be at risk for discrimination suits or EEOC complaints, even if your reason for the decision is not discriminatory.
Q: At what point in the hiring process should I check criminal history? If I do it too early, I’m paying for candidates that don’t pan out and if I wait too late, I’ll have to start the search all over once I realize my candidate is a criminal.
A: Most companies do it as a contingency on the offer, but some companies don’t want to go through the interview process without doing the background check.
Q:What consent do I need from the job seeker?
A: A signed written consent that’s separate from the job application. It should describe the nature of the background check. The background checking company can provide a standard consent form or you can have your legal counsel write one for you.
Q: What can I ask about criminal records on my application?
A: In most states, you can ask if someone has been convicted of a crime within a certain range of years that’s different in each state. Some states have restrictions on what you can ask or require particular language when asking about criminal records. California has rules about marijuana use, for example.
Q:What’s the oddest thing that you’ve turned up in your background checks?
A: We had a company use our small business service integrated with Monster.com that had two different car-jackers apply for jobs in the same week. It didn’t appear they were related offenses. They’d committed the car-jackings in different places, on different dates.
None of the information provided herein constitutes legal advice on behalf of Monster.