The Evolving Landscape of Background Checks, Criminal History Reports, and Where They are Used
More than ever background screening and the use of public records is under scrutiny. A recent release of a Joint Guidance by the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) combined with continued legal action highlight this increased oversight.
Unfortunately, this activity increases the level of confusion for employers. Which reports are allowable as part of pre-employment screening? When can these reports be drawn? What information may be provided on a job application?
Pre-employment background checks consist of a variety of data points. These may include:
Each company has unique requirements as to what information may be required for review. Positions that include financial responsibility or access to financial records may require a consumer credit report. Positions that include driving may require a review of Motor Vehicle Record. And some positions may require a review of criminal records.
Criminal records have created a firestorm of activity in the United States over their use and when they can be pulled or reviewed, specifically. Many municipalities and states have instituted a "ban-the-box" protocol that essentially eliminates the "convictions" question on an application, but allows the question to be asked and information pulled after an initial offer of employment is made. Significant confusion may arise as to the legal and lawful use of criminal records due to "ban-the-box" legislation. Companies must be very cautious and mindful of pre-employment background screening policies in order to remain compliant and out of court.
Yet it is important to note that criminal history reports, as part of background screening, will remain significant and important in key areas.
In the State of New York U.S. Senator Charles Schumer is looking to correct a loophole in state law to provide further background checks on individuals looking to become volunteers. He has discovered volunteer checks only review, by law, criminal histories that occur in the state of New York. That is, out-of-state offenses may not be caught, until now.
From the North County Gazette: (June 03, 14)
As of 2010, over 40% of the individuals with criminal records had committed an offense in a state other than where they were applying to volunteer, meaning that a state-only search would not have found relevant criminal records. Schumer noted that an applicant to be a camp counselor, for example, could have been convicted of an assault in Ohio, or committed a sex crime in Florida but there may be no record of it in the NYS database. http://www.northcountrygazette.org/2014/06/03/background_checks-2/
However, other areas are demanding a review of how criminal background checks are utilized and which offenses may or may not disqualify an individual from fair and gainful employment.
In Pennsylvania, the question of the fair use of criminal histories and, specifically, criminal offenses that may or may not have bearing on a position, is being raised.
From PennLive.com: (June 04, 14)
... state law only allows employers to consider felony or misdemeanor convictions, employers often reject applicants even when previous arrests and charges did not result in a conviction. They also ignore the law when they reject clients for summary offenses — as in the cases of her clients who were rejected for littering or disorderly conduct. http://www.pennlive.com/midstate/index.ssf/2014/06/criminal_record_checks_draw_cr.html
Ultimately the fair and lawful use of criminal histories will continue to be scrutinized and it is critical that companies work with third-party background screening companies in order to remain compliant with local, state, and federal regulation governing background screening. Failure to comply with law could result in significant penalty and costly legal action.
Utilizing a third-party background screening company, such as CriminalBackgroundRecords.com, is a smart course of action for any company of any size. They have the knowledge and experience to work within the guidelines that regulate background screening. Whether it is a national law or a local one, CriminalBackgroundRecords.com can assist any Human Resource Department in setting up a fully compliant hiring policy as well as provide the reports and documents required to make safe, legal, and compliant decisions on new hires.
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