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The Use of Criminal Histories in Pre-Employment Background Screening Continues to be Scrutinized, States

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March 18, 2016 Return to News & Events

The Use of Criminal Histories in Pre-Employment Background Screening Continues to be Scrutinized, States

The use of "Ban-the-Box" legislation continues to expand and evolve, and has been increasingly implemented across the country by various cities, counties, and states. Adam Almeida, President and CEO of states: "As Ban-the-Box legislation continues to expand, the legal and lawful use of criminal records has become problematic for companies and organizations. Subsequently, these companies and organizations would be best served utilizing the services of a third-party background screening company in order to maintain compliance with laws governing the use of criminal records as well as staying ahead of further change."

"Ban-the-box" legislation continues to expand across the country and, subsequently, continues to create confusion with the fair and legal use of criminal records as part of the pre-employment background screening process. Adam Almeida, President and CEO of states: "The evolution of the "Ban-the-box" movement has been significant but new legislation has created confusion with companies over what criminal history information they can ask for and when they can ask for it."

Across the country cities, counties, and states are enacting individual policy based on EEOC guidelines and the "ban-the-box" initiative.

In the city of Staunton, Virginia "ban-the-box" legislation is moving forward, stating:

Part of a national movement, banning the box means removing the criminal record question from job applications so people who've served time for their crimes can be interviewed on an even playing field with those who have no record. (; Mar. 02, 16) (1)

Leveling the "playing field" is a key component of "ban-the-box." Creating a fair and equal entry to employment is the core strategy of the Equal Employment Opportunity Commission, the government body tasked with fighting discrimination in the workplace.

The state of Connecticut is on the verge of enacting a statewide law governing the use of criminal background records.

From (Mar. 04, 16):

In what is referred to as the Ban the Box bill, House Bill 5237 would prevent any employer in Connecticut from requiring job applicants to disclose their criminal history before receiving a conditional offer of employment. (2)

And in California similar activity is taking place.

From (Mar. 02, 16):

Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions.

The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class. (3)

Limiting the use of Criminal Records as part of a pre-employment background screening program can be problematic for companies and organizations. It will force substantive changes to existing background screening policies.

Almeida states: "As more states adopt "ban-the-box" policies it will be incumbent upon companies and organizations to ensure that the proper and legal policies regarding the use of criminal records are in place. Failure to comply with law can be costly and the EEOC has not been shy about pursuing legal action."

From (Mar. 02, 16):

If the amendment {ban-the-box} will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity. (4)

Almeida states: "Ultimately, the best practice to maintain compliance with all federal, state, and local laws governing the legal use of all public records, including criminal history, as part of any background check, is to work with a well-qualified background screening company. And as more and more laws are put in place now, more than ever, is the time to work with a third-party." as a third-party employment background screening company can perform thorough employment background checks anywhere in the country and is staffed with highly trained investigators that can create custom background screening programs designed to remain compliant with local and Federal law.




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