“What if my applicant has a criminal record?”
This question comes up often because as employers you not only have a desire to hire the best employees, you also have a responsibility to protect your business, your existing employees, and the public at large. So what do you do when an applicant comes forward with information about a criminal past or you’ve done a background check and find some things that concern you?
Some take a hardline approach and have a policy that says if there is ANY criminal record then the applicant is not eligible.
This is problematic because statistically almost 30 % of adults have a criminal record, which include felonies and misdemeanors. When you throw in traffic offenses the number climbs to almost 50% of adults with a criminal record. Think about how many otherwise qualified people, would be excluded!
Others take the approach of not checking backgrounds at all, and relying upon their interviewing skills and gut instinct in their hiring decision. This is an even worse approach because now you are not only more likely to make a bad hiring decision wasting company resources, you’re also highly exposed to a Negligent Hiring/Retention lawsuit.
By the way: employers lose over 80% of these cases, the average costs is over $1,000,000; AND most insurance policies do not cover these claims because the company did not take reasonable due diligence measures in the hiring process by running a background check. In other words this is a great way to get put out of business!
But there is a better way that helps protect your organization, puts more qualified applicants into your hiring pool, keeps your current workforce safer, and actually saves you time and money in the long run;
STEP 1: Run a background check with a reputable Consumer Reporting Agency (CRA).
Running a background check that meets or exceeds current “Due Diligence” standards is the first step in protecting your organization, your employees, and the public from a bad hire. Typically a great place to start is to have your provider perform a (1) Social Trace with AKA history, (2) Address History Search, (4) Nationwide Sex Offender Search, (4) Nationwide Criminal Database search on all names including AKA’s, (5) Security Watch Lists search, (6) Federal District Search, and (7) on-site counties or statewide criminal searches covering where your applicant has lived in the past 7-10 years.
STEP 2: Evaluate the Background Check based on the requirements for your position.
When adverse information like a criminal record comes back we encourage our clients to perform what’s called an “Individualized Assessment”. An “Individualized Assessment” is the Equal Employment Opportunity Commission’s (EEOC) recommended guidance that helps employers determine that exclusions due to criminal conduct are both job-related and consistent with business necessity. According to SHRM, “The goal of the EEOC guidance was to help people in with higher incarceration rates get jobs and not be automatically excluded from the candidate pool due to a criminal history.” Things considered are;
- The facts or circumstances surrounding the offense or conduct.
- The number of offenses for which the individual was convicted.
- The individual’s age at the time of conviction and/ or release from incarceration.
- Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct.
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts, e.g., education/training.
- Employment or character references and any other information regarding fitness for the particular position.
- Whether the individual is bonded under a federal, state, or local bonding program.
STEP 3: Perform annual rechecks to ensure your employees remain eligible to work.
A periodic recheck is highly recommended because a single background check only looks at a snap-shot in time looking back, but what if something has happened since the background check that exposes you and your organization to huge Negligent Retention lawsuit? You cannot assume that once a background check has been performed during the hiring process that everything is good from that point on because life happens, and people, and circumstances change.
Rechecking is especially important for organizations that send employees to people’s homes, interact with the public, or who have control over company assets or operate company equipment.
Implementing an effective and compliant background screening program isn’t hard or expensive, but is absolutely necessary to protect your organization, your employees, and the public. If we can help answer any questions or please don’t hesitate to reach out to us as we encourage you to always work with a reputable Consumer Reporting Agency such as Edify Background Screening; and as always, be sure to consult with competent legal counsel to ensure you are following all applicable laws and regulations for your area.
