A Comprehensive Look at Background Check Screening
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Date posted: 2008-06-05 05:21:48
According to a survey made by the Society for Human Resource Management, 96% of businesses have been using background checks on their applicants since 2004.
In the past seven years, it has been reported that 41% of resumes were “enhanced” and 5% of the total number of applicants were said to have had criminal records to their names.
But in spite of the statistics, some businesses still have second thoughts on conducting background checks on applicants and employees. Law holds employers liable for any workplace violence that could happen due to negligent hiring. Even youth organizations nowadays are conducting background checks to screen their volunteer workers. This action came about when a youth group volunteer arrested and charged for sexually assaulting a minor in New York.
Several issues however were raised on the negative consequences that may be brought about by these screening tests. The Equal Employment Opportunity Commission reported that nationally, Blacks and Hispanics had more arrest records compared to the whites. This would give minority groups lesser chances of getting hired.
But still, there are certain jobs that are required by law to conduct mandatory background checks. Jobs involving children, the elderly and the disabled would require workers who could be trusted without a question. Some states such as New Jersey, Pennsylvania and Delaware are now practicing such measures.
Initially, the law does not require employers to do background checks on their applicants. But if ever a company chooses to use such services in their hiring process, there are laws that protect the privacy of the applicants’ records. In the state of Pennsylvania, arrest records beyond the last three years are restricted from the public. Convictions could only be made a basis for hiring given when it affects the person’s ability to perform the job. The state of Delaware also regulates access of criminal records solely to the person’s conviction history.
Employers need to exercise utmost discretion in deciding who to hire based on a person’s background history. Records that have nothing to do with the job should never be a basis for an applicant’s dismissal. Recently, the EEOC has made steps to avoid discrimination in employment brought about by background screening. Any information gathered on a screening check should always be thoroughly evaluated in terms of the gravity of the offense, the time of the conviction and its relevance to the job.
The 3rd US Circuit Court of Appeals recently heard a case of disparate treatment. The Southeastern Pennsylvania Transport Authority’s policy on disqualifying every applicant with past criminal convictions has raised complaints on minority applicants. An employee was reportedly fired for a 40-year-old conviction for 2nd degree murder.
In the end, the court ruled in the favor of SEPTA on the basis of public safety concerns stating that the employee failed to present an alternative solution to the current policy. This case however has led the court to take a deeper look on the absolute policy on disqualifying applicants and employees based on background records. Aside from this, employers also need to be very vigilant in following state rules in regards to background checks.
Nowadays, most states require employers to ask a written consent from applicants and existing employees before they can conduct background screenings. In Pennsylvania, employers who dismiss applicants from a job based on a past record are required to give a report to the applicant explaining the company’s decision. This will give every candidate a chance to verify or contradict the accuracy of such records.
A federal law – the Fair Credit Reporting Act (FCRA) also regulates the use of consumer records (background and credit history records) and investigative consumer reports (employee character, mode of living, etc.) that are made available thru background checks.
Background checks are mandated by law to adhere to these rules:
• Obtaining a written and signed consent from the employee/ applicant prior to a background check
• Informing the applicant/employee (thru written notice) that consumer and investigative consumer reports will be part of the check
• A certification for the consumer reporting agency stating that they have strictly complied with the laws of FCRA
• Providing the applicant/employee with the results of their background check along with a copy of his/her rights under the FCRA. Contact information of the consumer reporting agency should also be included
Failure of employers to follow the provisions of the FCRA will make them liable for any future damages.
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