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Wednesday, June 12, 2013

How to Legally Use Criminal Background Checks

This week the EEOC filed suit against Nashville's own Dollar General as well as BMW over the use of criminal background checks.  The comments I have read on-line about this move test the bounds of ignorance even for on-line comments.  What the EEOC wants employers to do is what departments I run have done for years.  It really isn't that complicated.

The EEOC is concerned with an overreach and/or misapplication of background screens to the point that they exclude non-white minorities at a disproportionate rate. This is a valid concern, as non-whites are arrested and convicted at a higher frequency than whites.  The EEOC's complaints primarily center around using arrest records rather than convictions, going back too many years, and having a blanket policy that excludes criminal histories that have no bearing on the job sought by the applicant.

In April the EEOC issued guidance on how to legally apply background checks.  In case you don't want to wade through all this I can give it to you in a few simple steps.

1.  Do not have a policy that any criminal history disqualifies a candidate.  Now before you think me permissive (that is not my reputation at all), think about this.  Some offenses are minor in nature, or completely unrelated to work performance such as offenses arising from domestic disputes.  I once had an applicant who as a 20 year old found out that her boyfriend was actually married and had not told her.  She got liquored-up and used her car to mow-down his white picket fence and mailbox so as to announce their affair to his wife.  The fence was valuable enough to be a felony destruction of property and the mailbox was, you guessed it, a federal offense.  Under many companies' policies she would have been unemployable and that is ridiculous.

2.  Set your hiring criteria as "Management Discretion." Use all information gathered to inform your discretion, but have no disqualifiers unless state law requires it (think health care and Office of Inspector General Disqualified Persons checks as such as exception).

3. Use grace and discretion.  Was the offense last year or 10 years ago?  Was the individual grown at the time, or in college or otherwise immature?  An offense committed the same number of years ago but  by a 17 year old or a 37 year old makes a difference.

4.  Consider the job.  If an Accountant has a DUI history but a desk job they are probably okay to hire. If a truck driver or Nursing Home Van Driver has the same history they should be disqualified.

5.  Give the applicant and chance to respond.  One of the EEO complaints against Dollar General was that they allegedly had an applicant disqualified because of erroneous criminal background history.  Many people have the same name, and background checks are not an exact science.  First make sure that the applicant confirms that the criminal history does indeed belong to them.  If not you can re-run the check. If they do admit that it is theirs you have taken a verification step that argues against a theory of discrimination.

My guidelines were always that theft and violence were disqualifiers unless the offense happened a very long time ago. That applied doubly for violence against women.  I could never bring myself to hire someone who was a threat to the assets or workforce.  Short of that I am open to hearing the applicant's side of the story while always mindful to protect the legitimate interests of my employer.

That is what the EEOC wants employers to do.  I have done it for years as have departments I have led.  It isn't that hard, it is perfectly legal, and it also morally the right thing to do.  A mistake made due to youth, alcohol or impetuosity should not keep good people from making a living.

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