Whether Employers Should Conduct Background Checks

Mon, April 18th, 2011 - 4:32 am - By Gordon Basichis

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Apparently certain employers discriminate in their hiring practices.  According to a recent report in the National Employment Law Project, or NELP,  their survey of Cragi’s Lit reveals that no hire policies are routine.   According to their Press Release, NELP posted the following–

“The new report highlights the widespread and illegal use of blanket no-hire policies by providing numerous examples of online job ads posted on Craig’s List, including some by major corporations, that effectively bar significant portions of the U.S. population from work opportunities.  Because of their blunt impact and extreme overreach, these blanket no-hire policies have become the subject of increasing litigation, attracting heightened scrutiny from the courts and concerned policymakers.  At the same time, 92 percent of employers conduct criminal background checks, according to a 2010 Society for Human Resources Management survey.
The fast-growing use of criminal background checks casts an extraordinarily wide net, potentially ensnaring millions of Americans who have an arrest or other record that shows up in a routine check,” said Christine Owens, executive director of the National Employment Law Project.  “These background checks are supposed to promote safety in the workplace, but many employers have gone way overboard, refusing to even consider highly qualified applicants just because of an old arrest or conviction.  They’re not even bothering to ask what the arrest or conviction was for, how far in the past it was, whether it’s in any way related to the job, or what the person has done with his or her life since,” said Owens.
I found this alarming.  I also found this odd.   For one thing the Fair Credit Reporting Act (FCRA) and various labor laws, both state and federal, place limitations on the length of time conviction records can be considered for employment purposes.  Not only is the length of time a factor, but the actual crime can be a factors as well. Misdemeanors are given more leniencies in some states as well as first offender.

That being said, most of our clients often do not take into consideration old criminal records. At least they don’t rule an employment applicant ineligible only because of a criminal past. Of course, violent felonies can give employers pause, but misdemeanors and infractions don’t seem to carry the gravitas that this report would intimate.   Most employers that we service are far more concerned about skill sets and employee reliability than distant infractions and felonies.  In certain industries, trucking, industrial, criminal records are fairly common and, frankly, certain employers wouldn’t have a workforce if they excluded job applicants with past convictions.

As I noted, violent crimes are another matter.   Employers when conducting employment screening will be much more discerning about violent crimes in an employment candidate’s background check.  The fear of course is not so much what the employee did in the past, but whether or not he would act out on the job.   Workplace violence is always a major consideration.  That being said, employees with violent criminal histories may not be the ones to act out on the job.  In fact, in some cases they become models of restraint, realizing any violent action, plus their past history would most definitely cause them to lose their jobs.

In fairness to the NELP  report, it does list prominent companies who advertise positions on Craig’s List and specify that those with criminal records need not apply.   Having no idea what the policies of these companies are, it’s not my place to give an opinion of their practices.  I do know that in most cases criminal records are neither violent or extensive.  They are often modest infractions.

I have known a few people who  when younger got themselves in trouble when they were younger and then straightened out their lives and went on to become reputable employees.   Some of these people became professionals, or key managers, professors and deans at universities.   It is hardly above the pale that someone messes up at one point and then turns around his life.   So denying people second chances, or denying them employment, doesn’t make sense.

It is not a perfect world, after all.  In case you haven’t noticed.

As one client said. ..”Hey, he was the best man for the job.  Had the skill sets I needed.   Because he did something fifteen years ago, what do I care?”

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