Every new hire for an employer is an enormous risk. The employee will be entrusted with handling equipment, interacting with customers, taking payments, or any of the many essential tasks that employers can’t possibly do all on their own. Using criminal background checks to weed out candidates with substantial criminal records makes sense for many jobs, but improper background screenings can land a business in hot water. A recent survey of HR officials found that many companies aren’t following the most recent guidelines from the EEOC on background checks.
The Equal Employment Opportunity Commission is a government agency tasked with enforcing federal anti-discrimination laws. Because it’s essential that former criminals have a way to reintegrate into society, there are guidelines and laws about when and how certain background screenings are done. The EEOC updated these guidelines in 2013, but a survey from EmployeeScreenIQ many companies weren’t entirely up to date with implementing recommended changes.
EmployeeScreenIQ surveyed 500 HR professionals on how they handle critical screening issues, including compliance and criminal background checks. The survey showed mixed results among the HR professional surveyed and the companies the represent.
For example, more than half (53 percent) of the survey respondents said their organizations ask candidates to divulge criminal history on their job applications. While this may seem harmless, the most recent EEOC recommendation suggests employers refrain from asking for self-disclosure on job applications.
Despite the shortcoming above, most employers are getting certain requirements correct. The survey found that seven out of ten (72 percent) said their organizations perform individualized assessments for candidates with criminal convictions so they can explain the circumstances. While this goes against the idea of refraining from self-disclosure, individualized assessments are a de facto requirement of the EEOC for companies that do use self-disclosure.
It’s not that employers are unaware of the need to keep up with EEOC requirements and recommendations. Compliance was a major concern for the employers surveyed by the researchers. A slim majority (51 percent) of the survey respondents cited compliance as their most significant background screening challenge.
“The EEOC has been extremely aggressive in its enforcement of the criminal records guidance,” said Nick Fishman, EmployeeScreenIQ’s chief marketing officer. “As a result, it’s extremely important for employers to follow these best practices. Otherwise, they risk facing costly legal action and the potential for damaging negative publicity.”
The concern of employers is justified. Improperly using background screens can lead to costly litigation. In September, BMW agreed to a settlement of $1.6 million over improper background screenings and firings in 2008.
At the time of the settlement, the EEOC released a statement which showed that besides following proper basic guidelines, an employer can find themselves on the wrong side of Federal discrimination laws if their screenings disproportionately affect a particular minority group.
“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity,” said P. David Lopez, EEOC’s General Counsel in a press statement on the BMW settlement.
To learn what is and isn’t permitted for pre-employment background checks, read this guide on background screenings from the EEOC itself. And for commentary on the guidelines and what they mean for employers, read EmploymentScreenIQ’s “The EEOC’s Criminal Background Screening Guidance 3 Years Later: 5 Lessons Employers Need to Know”.
For more information on studies of interest to HR professionals, read this article on bullying in the workplace.