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Recent Lawsuits and Changes in the Law Suggest Employers Review Their Background Screening Policies

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August 8, 2013 Return to News & Events

Recent Lawsuits and Changes in the Law Suggest Employers Review Their Background Screening Policies

Recently the EEOC filed suit against two large firms over their use of Criminal Histories as part of the pre-employment background screening process.  The use of Criminal Histories has long been controversial and will continue to be so into the foreseeable future.

Many companies across the United States utilize background screening, with Criminal History checks as a centerpiece of these checks:

More than two thirds (69%) of employers run criminal background checks on all of their potential employees according to a 2012 survey by the Society of Human Resource Management. At the same time, the number of Americans with criminal records has escalated dramatically in recent years. According to the 2013 testimony of a Justice Department official, a startling one in three Americans has some sort of criminal record, which often includes an arrest that didn’t lead to a conviction, a conviction that didn’t result in  jail time or a conviction for a non-violent crime. Yet often these records are swept into over-broad background checks that then exclude applicants from jobs.

In April 2012 the EEOC issued guidelines over the use of Criminal Histories as they pertain to potential discrimination, as well as how background checks are used specific to the job an applicant has applied.  These "Guidelines" are just that, guidelines, but there remains a significant amount of confusion as related to background screening.

The use of criminal records in an "over-broad" background screening policy could lead to potential issue.  The EEOC Guidance suggests "specific" use for a "specific" position.  In other words, does the potential truly require a Criminal History check for a specific reason?  Further, what is a "Criminal History?"  As suggested in the passage sited above it can include arrests without conviction, a conviction with time search, or a non-violent offense.  Ultimately it is up to the employer to understand what can and cannot be used and how that information may be used, all while staying compliant with local, state and Federal laws and Civil Rights guidelines.

Adam Almeida, President and CEO of states:  "There are significant changes affecting the background screening industry.  The use of criminal history records will remain under the microscope for the foreseeable future and it puts a new burden on any company to truly understand if they are using them in a legal and compliant manner."

...the fact is that the government is cracking down on employers who use background checks without looking at whether the criminal record has any relevance to the job and without giving the applicant a chance to show that she or he is fit to do the work. “Employers are going to have to start looking at more legal and fair ways to evaluate job applicants with criminal records,” says Friedman. “This litigation makes it clear that broad-brush practices that automatically exclude thousands of qualified applicants will not be tolerated.”

Almeida says, "Working with a third-party background screening company is the best way to stay in compliance with laws regulating the use of criminal history records as a part of pre-employment screening.  They have the knowledge and understanding that can greatly assist any employer." is a third-party background screening company that assists companies large and small with all of their background screening requirements.  With vast knowledge of local, state and federal laws and regulations, can assist in creating a compliant pre-employment background screening policy. is a national third-party background screening company that works with companies and organizations of all sizes. They provide safe, secure, and fully-compliant background screening documents.

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