Delaware Employment Law Blog

Criminal background checks of job applicants seems to have reached a tipping point as a topic in employment-law circles. So, what are the key components leading to this perfect storm of EEO laws?

1. Most Employers Consider Criminal History
According to a 2010 study conducted by SHRM, more than 9 out of 10 employers polled conducted criminal background checks on some or all job candidates as part of the pre-employment screening process. The study found that 73% of employers conduct these checks for all candidates, while 19% used them only for selected positions.

2. More Adults Have Criminal Records
According to a March 2011 study by the National Employment Law Project, more than 1 in every 4 adults are estimated to have a criminal record. Thus, the use of criminal-background checks in the job-screening process affects more than one-quarter of all potential applicants. See 65 Million "Need Not Apply" (PDF)

3. EEOC's Public Meeting
In July 2011, the EEOC held a public meeting to "Examine Arrest and Conviction Records as Hiring Barrier," focusing on the use of criminal records by employers for employment screening background checks. The purpose of the meeting was to identify the ways in which criminal histories are being used, how they can be used appropriately, the legal guidelines for doing so.

4. Ban-the-Box Movement--Nationally and Locally
Around the country, cities, counties, and municipalities are adopting laws and ordinances known as "ban-the-box" laws. The reference is to remove from job applications the box that an applicant is asked to check to indicate that he or she has a criminal history. By removing the "box" question, the idea is that an applicant will not be automatically excluded from consideration as a result of criminal background.

Philadelphia is one of the latest cities to join this movement. The Fair Criminal Record Screening Standards Act, which was signed in April 2011, took effect on Friday, January 13, 2012. As detailed in this earlier post, the Act prohibits employers from inquiring during the fir initial interview about a candidate's arrest history.

5. EEOC Settles Lawsuit for $3M
The most recent development has been the settlement of a lawsuit brought by the EEOC against Pepsi Beverages Company ("Pepsi"), in which Pepsi agreed to pay $3.13 million as a result of its policy, which was revised during the EEOC's investigation, and which prohibited the employment of applicants with an arrest history, regardless of whether the arrest had led to a conviction. The payment will be split among more than 300 applicants who, according to the terms of the conciliation agreement, were adversely affected by the policy between 2006 and 2010. A portion of the sum will be allocated for the administration of the claims process. The suit alleged that the employer's criminal background-check policy violated Title VII's prohibition against race-based discrimination.

How can an employer avoid the perfect storm? There are two keys. First, and most important, do not use criminal histories as a per se bar to employment. Second, use the EEOC's suggested best practices to determine whether a particular candidate's criminal history should be considered and, if so, how to do so in a legally sound way. For more information on this process, see these earlier posts:
How Considering a Candidate's Arrest History Could Land You In EEOC Jail
Research Puts 5-Year Expiration Date on Criminal Records Used for Background Checks
Is Creditworthiness a Protected Characteristic? Yes, says EEOC

Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as "ban-the-box" legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers' consideration of a candidate's credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

EEOC has filed a particularly newsworthy lawsuit against Kaplan Higher Education Corp.The suit is based on Kaplan's alleged consideration of candidates' credit histories during the hiring process.  EEOC takes the position (and has, for quite some time), that employers may be engaging in unlawful employment discrimination by using a candidate's credit history when deciding who to hire. EEOC contends that this practice, in which many employers engage regularly, has an unlawful discriminatory impact based on race and is neither job-related nor justified by business necessity.  In short, EEOC alleges that employers, including Kaplan, are disproportionately disqualifying black candidates due to credit ratings.

Although I understand that there is a comfort to employers in using credit histories to screen clients, comfortable isn't always the most desirable outcome.  When an employer asks me about whether to rule out a candidate based on the candidate's credit history, I usually suggest that it's very possible that a top performing employee can be so focused on being a top performer that their personal lives are left unattended. In other words, you can imagine an employee whose personal credit is less than perfect because they're too focused on work--not the worst employee that I can imagine, by far.

Another scenario is an employee who goes through a difficult divorce, which results in a poor credit rating.  Or, alternatively, if the employee has had a serious family illness.  This, also, can lead to financial difficulty and, in turn, to a less-than-stellar credit rating. 

Of course, none of these scenarios are connected by race or ethnicity.  Thus, I can't say that I am particularly compelled by EEOC's position in the Kaplan case. But neither am I compelled by a credit score--especially not in a difficult economy or in any economy when looking for the best possible employee for the job.

One final note.  Illinois recently passed a law prohibiting employers from disqualifying candidates based on credit history.  The law takes effect on January 1, 2011.  Hawaii, Oregon, and Washington have similar laws.  And, as of late summer, 2010, similar bills were pending in 15 states.  So it seems indisputable that the practice is becoming more and more disfavored.

Other Resources:

Washington Post article re: EEOC v. Kaplan

EEOC Press Release

Employers who conduct background checks on candidates must be careful to comply with a variety of governing laws.  A particularly hot topic in this area is criminal-background checks. Many (if not most) mid- and large-sized businesses in the U.S. are performing background checks, including criminal-history reports, on at least some job candidates.  But criminal histories can be complicated.  The EEOC has quite a bit to say about what you do with the information you receive in response to these requests.  (See How Considering a Candidate's Arrest Records Could Land You In EEOC Jail; Potential Delaware Judge's Criminal Record Raises Questions for State Senate).

One of the EEOC's concerns is the length of time that has passed since the crime occurred and the sentence imposed. Generally, employers should not consider a criminal histories that are more than 7 years old.  There are, of course, exceptions to this rule. As far as I'm aware, the EEOC's 7-year rule is not tied to empirical data that supports seven as the magic number. 

But a recent study by Carnegie Mellon provides the science that may be key to answering the question, How long does an individual have to be "clean" before he can be considered "redeemed" for employment purposes. According to the study, 5 years.  The study estimates that, after five years without a run-in with the law, an ex-convict is no more likely to commit another crime than other citizens of the same age.  Most committed new crimes within the first few years after their arrest, perhaps adding legitimacy to the use of criminal records in the first place.  But only a small number of those studied were re-arrested after that 5-year mark.

Many states already have legal limits on the use of criminal histories by employers. Some states prohibit their use altogether. Others require the employer to disclose their request to the candidate prior to receiving the records.  And some impose expiration dates--just in case the EEOC Guidance isn't persuasive enough.  This study may encourage other states to put limits on the length of time that a criminal history can be considered for the purposes of hiring decisions.

Job applicants lie on their resumes.  They lie a lot.  Some estimates say that as many as 62% of resumes contain embellished education and employment histories.  This is why, as we've posted before, employers must screen applicants.  One recent example of an employee caught with his hand in the cookie jar, so to speak, is Robert Irvine.  The popular host of the Food Network show, "Dinner: Impossible," admitted that he had spiced up his resume when it was discovered that he had not cooked for the Royal Family as he'd represented during the application process.  He was released from his contract and a substitute was hired for the rest of the season. 

Apparently, though, his cooking and his charm were enough to warrant the forgiveness of the TV network.  Irvine is set to return to "Dinner: Impossible" this season.  He's said to be coming back for six new episodes, which will tape in December and January and air in March.  His previous and soon-to-be employer had the following to say about its forgive-and-forget attitude to the resume indiscretion:

[Irvine] has taken responsibility and made a conscious effort to clear the air, rebuild the relationship with Food Network and apologized for the earlier inaccuracies.

Would you be so forgiving?  Would it matter whether the employee was a well-loved celebrity of sorts with big money-making potential?

Employers have used MySpace to screen potential job candidates.  Employers have fired employees for something posted on the employee's Facebook and MySpace pages.  Even the incoming White House administration is requiring applicants to disclose any potentially embarrassing content on social networking sites.  So we've seen the role Facebook and MySpace have played in hiring and firing decisions.  But there is a new use for employers--using Facebook and MySpace in litigation.  Specifically, litigation against former or current employees.   

Dan Schwartz at the CT Employment Law Blog pointed out this new use as described in an article at Law.com entitled "Are Social Networking Sites Discoverable?" The article concludes that the information found on a plaintiff's MySpace or Facebook page is likely discoverable during litigation.  From the article:

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

Dan raises a great point--what if the employee's website contains comments that would disprove his claim?  For example, if an employee is claiming national-origin harassment and his co-workers said that there was an environment of friendly, though inappropriate (but not unwelcome), banter between the young males in the department.  The employee claims that he never engaged in this banter but, instead, he was subject to frequent comments so severe that it made his workplace a hostile environment.  So there's the employee's word and the word of his co-workers.  Not much to go on as far as a defense goes. 

But what if the employee's MySpace page was peppered with inappropriate comments of his own?  And what if the comments were exactly the ones identified by the co-workers? 

It's not difficult to imagine this potentially case-changing scenario.  It looks like MySpace and Facebook are here to stay as a tool for employers to learn potentially crucial information about employees--old and new.

Potential job candidates beware: your Facebook page is not off limits.  At least that's the case if you're applying for a job in Presidential-elect Obama's administration.  Candidates for Cabinet and other high-ranking positions must complete a seven-page, 63-item questionnaire, which asks questions about almost every imaginable detail of their personal lives.

Some of the areas on the application include:

• real estate and financial investments;
• involvement in civil or criminal lawsuits;
• immigration of any domestic help they may have hired;
• names and phone numbers of past live-in lovers;
• whether any family member owns a gun; and
• financial and tax information.

One of the more unusual topics on the questionnaire is a real "sign of the times."  Potential candidates must disclose Facebook pages and blogs.  CNN reports that job applicants will need to turn over any and all information that could potentially cause embarrassment to the next administration, including their social networking pages--past or present.

So, will this silence some of the critics who advocate against employers who run Facebook and MySpace searches on candidates?  If it's a suitable background-check method for potential members of the presidential Cabinet and international ambassadors, doesn't it seem like a reasonable idea for potential members of your organization?

For more on this topic, see:

New Study Shows Increase in Online Applicant Screening

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

1 in 5 employers use social networking sites to screen prospective employees.  That's according to a new study by Careerbuilder.  34% reported that they rejected candidates based on what they discovered during their online search.  We've written quite a bit about this practice, including what to look for if you do elect to incorporate online background checks into your hiring repertoire.

Here's what other employers have been looking for and, specifically, what will prompt them to reject a candidate:

• 41% - content posted about alcohol or drug use
• 40% - “inappropriate of provocative” pictures
• 29% - candidate appeared to have poor communications skills
• 28% - candidate bad-mouthed their previous company or fellow employee
• 27% - candidate lied about qualifications
• 22% - discriminatory comments related to race, gender, religion, etc.
• 22% - candidate’s screen name was unprofessional
• 21% - candidate was linked to criminal behavior
• 19% - candidate shared confidential information from previous employers

Unlike some bloggers, I am in favor of this practice--so long as it is performed with certain safeguards.  For example, Nick Fishman's concerns about the accuracy in candidate's Facebook or MySpace pages (1) have not materialized to any significant extent that I've seen; and (2) are allayed by simply asking the candidate about whatever it is that the employer found that may acting as a barrier to employment.  Just as with criminal backgrounds, employers should not make a per se decision without first giving the candidate an opportunity to explain the results of the report and any circumstances surrounding the arrest and/or conviction.  The same interactive discussion should occur if an employer finds something on the candidate's social-networking site that gives them concerns. 

One thing that opponents of this practice seem to overlook is that employers have an affirmative duty, legally, and for business reasons, to make the best hiring decisions possible, using all of the information reasonably available to them.  The only real threat of suit here is if the employer does not take the few minutes required to do an internet search on a candidate who, after being hired, commits an act of workplace violence. If the employee's MySpace page was filled with images of violence and words of rage, you can bet your last nickel that the employer will face a negligent hiring lawsuit for hiring the employee without taking the free and quick step of running that internet search. 

For prior posts on this topic, see:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

Background checks have been so popular on the Delaware Employment Law Blog that they could almost make up a blog all by themselves.  Lucky for us, we don't have to.  Nick Fishman and his group have the topic of background checks all wrapped up at the EmployeeScreen IQ Blog.  Nick's content is always top-notch but this new endeavor appears to be hard to beat. 

EmployeeScreen IQ Blog has launched the EmployeeScreen University.  As described on the blog, EmployeeScreen Univ. is a "first of its kind interactive, educational Web site for security, risk management and human resource professionals that features regularly updated, free background-screening information; all aimed to help hiring managers make better hiring decisions."  The new site is intended to act as a comprehensive resource for all things related to background checks, references, employee screening, and pre-hire testing. 

Recently, the site has added a few exciting new features, including a Guest Articles section, where you can find articles written from a "unique point of view about background checks and, or other related topics from industry insiders and experts.

Sample of Guest Contributors includes:

• Ron Bower, Vice President and Director of Talent Sourcing at AmTrust Bank on Developing Employee Referral Programs
• Keith Greene, former Vice President of Workforce Readiness at SHRM on developing strong partnerships with background screening organizations
• Michael Sankey, Founder and CEO of BRB Publications on how to search criminal records.

Be sure to bookmark the site for later.  And, in the meantime, you can check out a few of our  most recent posts on background checks and employee screening:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

Facebook, MySpace, and other social networking sites should be used as applicant-screening tools.  And here is conclusive proof--the Burger King-Tub Boy, a/k/a, "Mr. Unstable," Timothy Tackett. 

Tackett, 25, posted a video to his MySpace page, showing him taking a "bath" in the sink.  The sink, though, was in his employer's restaurant at the time he bathed in it.  In the nearly four-minute video, "Mr. Unstable" is seen bathing in a bubble-filled utility sink at the Burger King in Xenia, Ohio, where he had been employed.  Predictably, Tackett and four to five other employees on the midnight shift were terminated days after the video was posted.

So what's the take-away lesson from this unappetizing story? 

First, this is a lesson to our Gen Y friends and coworkers--yes, we mean it when we say that your social-networking escapades are not as private as you think. 

Second, these fiascos not only might prevent you from getting hired but also can get you fired if your employer learns of off-duty conduct that turns its corporate stomach. 

Third, this should serve as a poignant example of why employers must be knowledgeable with Web 2.0.  Your employees are online.  Employers, you need to be online, too. 

{There's no more excuses that you "don't know how" to use the social networking sites.  Just watch the step-by-step video tutorial, How to Set Up a Facebook Account for Applicant Screening}

Employers across the country admit to screening job applicants by checking the candidates' social networking sites, such as Facebook and MySpace. If you want to consider online job applicant screening, though, you'll need an account. Here's a step-by-step on how to create one.

 

 

This is the 4th Video in the series.  The first three can be accessed by selecting the "Resources" tab at the top of the page, and then "Video Resources" from the drop down list. 

Earlier posts on using the internet in hiring and recruiting:

• How to Conduct Online Background Searches With Google

• Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

• Top 10 Reasons Why Employers Should Screen Their Applicants

Hiring managers have a lot of homework to do. Background and reference checks have become absolutely necessary steps in hiring today for a variety of reasons, which we've previously discussed.  One way many employers are getting the access they need to uncensored information on candidates is with the internet.  Especially where the job pool is largely college graduates, the internet can be a great tool for applicant screening.

But the information superhighway doesn't come with a road map and employers may not know exactly how to navigate the internet when it's being used as a hiring tool.  When William W. Bowser and I spoke about this issue last week in an audioconference, there was a significant amount of interest in a tutorial on the ins and outs of performing background checks online.  We're happy to oblige. 

Here is a run-down of the two of the way you can use Google for doing your own, online investigation of potential candidates.

Google

What:  Google is the most popular search engine in town.  It's actually quite a bit more than that, but you can check out our video tutorials on the other ways to use Google.  But, for this purpose, Google is just about as self-explanatory as they come.

How:  The quintessential websearch tool, just about everyone knows how to search via Google.com.  In short form, all you need to do is direct your web browser to www.google.com.  In the search box, type the name of your candidate.  Run a search for every iteration of the candidate's name.  For example, if you were going to search Bill Bowser, you'd use that version of his name, but also, "William Bowser", "William W. Bowser", and even "Bowser, Esq."  Be sure to use quotation marks to ensure you don't return search results for all websites that include the word "William."

What You'll Find:  Of course, it all depends on the candidate, but Google is likely to turn up more favorable results than unfavorable ones.  Sports achievements commonly show up in a Google search, for example.  For younger candidates, the results are likely to be limited in number and will most often be directly from a local newspaper or school publication.

When to Use It:  If you use it at all, Google is an excellent place to start when searching for public information on candidates.  It's also a good tool for gathering data that the candidate would proudly tell you if given the opportunity. 

 

Google Blogsearch

What:  Well, since you're reading this via our blog, I'll assume you have a basic understanding of the concept. But for the sake of equality with Nos. 1 and 3, I'll give a little summary.  "Blog" is a combination of the words "Web" and "Log."  Blogs began mostly as personal journals (or logs) maintained by individuals and used as a way to communicate their daily adventures to friends and family.  But, as the phenomenon has caught on, blogs are maintained by an enormous spectrum of individuals and entities for an even larger variety of purposes.  There are enough blogs that your candidates may be bloggers themselves, providing you with direct access to their uncensored opinions and commentary.

How:  The easiest way to search for blogs online is to use Google's blogsearch tool.  Basically, you're just doing a Google search but limiting the results to blog posts.  This can be done either direct from the Google home page by selecting "more" from the list at the top left side of the window, and then by selecting "Blogs" from the drop-down list that appears.  Alternatively, just go directly to http://blogsearch.google.com. 

What You'll Find:  You may find a blog hosted by the candidate, a blog post written by the candidate for someone else's blog, or a blog post about the candidate.  Any of these three are likely to give you meaningful insight into the candidate's personality, opinions, and, if nothing else, their communication skills.  For example, if hiring for a customer-service representative, an employer may have concerns about a candidate who uses an extraordinary amount of profanity throughout his posts.  Another serious red flag is an applicant who uses derogatory terms or expresses anger or hate towards any group.  This behavior should be major concerns to employers who want to avoid liability for discrimination and harassment.  It can also be indicative of violent tendencies.  And, given the fact that nearly $2 million American workers are victims of workplace violence every year, this must be a concern for employers, as well.

Employers use Google, Facebook, and MySpace to conduct informal and unofficial background checks on job applicants.  But what about the employer's online reputation?  Learn how to monitor your online reputation, as well as your business' reputation using Google's free tool, Google Alerts.

 

 

http://www.slideboom.com/presentations/15998/Google-Alerts-by-Delaware-Employment-Law-Blog

On Thursday, William W. Bowser and I will present an audioconference on Applicant Screening With Google and MySpace.  We'll talk about whether the internet is a legal and ethical resource for use in the hiring process.  A necessary premise of the discussion, of course, is that applicant screening is a good idea in the first place.  Because, if it's not, we don't need to reach the Google-MySpace debate.  We believe that employers must make efforts to screen candidates before making their final hiring decision.   

 

 

 

 

 

1.  Resume Fraud.  An estimated 52% of applicants lie on their resumes.  If you are able to determine which applicants have misstated their credentials, you can eliminate them from the get-go without wasting any more time in the process.

2.  Limited Access to Information.  Employers do not want to provide any more information than what is required and are very hesitant to respond to a reference request.  But, at the same time, former employers often hold the key to the most relevant insight about the candidate.

3.  Background Checks Are Costly.  Many employers use an outside agency to perform background checks on potential employees.  And for good reason.  Background checks are complicated and time-consuming.  But, hiring an outside agency costs money and many small employers either cannot afford or have chosen not to dedicate the necessary resources to performing these checks.

4.  Compliance Issues.  Employers who do use an outside agency face their own set of problems.  The Fair Credit Reporting Act ("FCRA") set standards for employment screening conducted by consumer-reporting agencies and outside companies.  There is a list of compliance requirements triggered by the FCRA, including various disclosures an employer must make before, during, and after the background check has been performed.  The FCRA also carries substantial penalties for non-compliance. 

5.  Bad Apples Are Expensive.  Hiring is one of the most critical decisions a business will make.  Failure to carefully screen and select applicants can result in employees who are (1) not qualified to perform the work hired to do; (2) whose work habits are not in line with the organization's; (3) whose attitudes and personalities clash with coworkers, (4) hired under false expectations which later turns into poor morale and low productivity.  The U.S. Department of Labor estimates that the average cost of a bad hiring decision can equal 30% of the employee's potential earnings during the first year of employment.  But that estimate is low--many submit that the number is closer to 100% for non-management personnel and 150% to 200% for management. 

6.  Employee Theft.  The U.S. Chamber of Commerce estimates that theft by employees costs American companies $20 to $40 billion per year.  U.S. consumers absorb this cost at the yearly rate of $400 per working adult.  An employee is 15 times more likely than a nonemployee to steal from an employer.

7.  Claims of Negligent Hiring and Retention.  Employers can be sued and held liable if they fail to use reasonable care in the employment-selection process.  "Reasonable care" is dependent on not just whether the employer knew about the candidate's proclivities but also whether the employer should have known.  In short, failure to screen applicants and to use proper care in hiring can result in legal liability.

8.  Workplace Violence.  Some two million American workers are victims of workplace violence each year.  Certainly not every incident of violence could be prevented with applicant screening.  But if pre-employment checks could prevent a potential incident from happening in your workplace, wouldn't it be worth it?

9. Intellectual Property Concerns.  Intellectual-property theft is a very real concern, costing American employers anywhere from $200 million to more than $1.2 trillion annually.  As the workplace becomes more technology-based and employees become more technology-savvy, the risk of stolen trade secrets and other proprietary information will continue to escalate.

10.  Federal Anti-Discrimination Laws.  Of course, this is the biggest fear of most employers--that the person they hire will later "turn" on the company and file suit.  And there is good reason to worry.  Just ask Wal-Mart, which has been hit with several multi-million dollar lawsuits brought by employees in 2008 alone.

Background checks are commonplace today. The law requires them for some employees, such as child-care providers, nurses, bank employees, and teachers. But there are a variety of reasons for employers to perform background checks even when not required by law. The reasons range from avoiding increased insurance costs to preventing a negligent hiring suit to averting workplace theft and violence.  Background checks provide the information needed to effectuate those objectives. But sometimes the information generated by a background check creates more questions than answers. Smart employers ask questions. Here are some answers.*

Stop in the name of lawful hiring, before you break the law
The Equal Employment Opportunity Commission (EEOC) has taken a formal position against the use of arrest records as an absolute bar to employment, and the federal courts have followed. If you want to comply with the EEOC's standards ― and who doesn't? ― don't disqualify candidates who have been arrested. The EEOC has explained that the use of arrest records to disqualify candidates at the outset would disproportionately affect African-American and Hispanic candidates.
That results in unlawful disparate impact discrimination. Unlike disparate treatment discrimination, disparate impact doesn't involve any particular animus by the employer. The policy looks neutral on its face and seems to affect all candidates equally. But the real effect is felt by only a certain protected class. So to avoid facing a disparate impact discrimination suit, don't adopt a policy of refusing to hire an applicant because of an earlier arrest.

Let's be honest, this standard is pretty fair. You may have heard of something called "the presumption of innocence." In our nation's judicial system, we accept that a person who is arrested is presumed innocent until proven guilty.

You've got something to talk about ― an arrest record to figure out
While employers may not rule out every candidate with an arrest record, in most states, including Delaware, there are circumstances under which an arrest record may be considered. If the results of a background check reveal an arrest history, you should follow a specific course of action when considering the information.

As a first step, the EEOC tells employers to provide the candidate with a "meaningful opportunity to explain." In short, that means that you should meet with the candidate, provide him with the information you have received, and give him a chance to provide you with more information that he feels may be relevant in making your decision. The key is not only to let the employee talk, but also for you to actually listen. Hence, the phrase "meaningful opportunity."
The EEOC intends the process to yield meaningful results and, in turn, expects employers to take more than a passive role. If you could likely verify the candidate's explanation with a phone call to his previous employer, the EEOC wants you to do just that. If the circumstances and explanation offered by the potential employee don't allay your concerns, the EEOC still suggests that you proceed with caution before disqualifying him for the job.

What's an arrest record got to do with it?
Next you should consider whether the circumstances of the arrest are "job-related." The usual response from employers is "How can an arrest not be related to the job?" Certainly there is an element of truth to that question. But in reality, and especially in the world of the EEOC, it doesn't represent the whole truth. To accept that all persons with an arrest record are unfit to hold a job would be a quick return to disparate impact discrimination ― do not pass "Go," do not collect $200.

So when is an arrest history truly "job-related"? The EEOC gives us three things to consider: (1) the nature and gravity of the offense, (2) the time that has passed since it occurred, and (3) the nature of the job sought. Certainly, some jobs will necessarily require a higher standard, and more candidates may be excluded as a result. Law enforcement or other safety-sensitive positions, jobs that give the employee easy access to the possessions of others, and any position that imposes a responsibility on the employer for the safety or well-being of others are three common examples.
Although this may seem like a difficult question, it can be easier to answer if you ask the inverse ― when is a candidate's arrest history not related to his ability to succeed in the available job? A person applying to be a pharmaceutical sales representative is unlikely to be disqualified because he was once arrested for spray painting a vacant building. Graffiti skills aren't related to the medical knowledge and self-starter personality trait needed in the sales position. And the arrest seems even more irrelevant if it occurred when the applicant, who is now in his 40s, was a teenager.

You've been hit by . . . a smooth criminal
But there are situations that tread a bit closer to the line. For example, would a previous arrest for making terrorist-like threats be related to the skills required of executive assistant? Any crime that involves violence or the potential for violence will require closer attention than, for example, a crime limited to property damage.

This may be where the "meaningful opportunity" saves the day. If you told the candidate that the results of her background check included the arrest, could she offer you any reasonable explanation that would render the arrest unrelated to the job? Maybe she could.
Maybe she would explain that the arrest had occurred when she tried to intervene in a domestic dispute in a neighboring apartment. Once the smoke cleared, she was released and no charges were pressed. And let us suppose that she offered you the name of the arresting officer, who verified her story. You just might end up hiring a new executive assistant, arrest record and all.

Also see: The EEOC published an informal discussion letter in March on the use of conviction records in hiring.

*originally published in the Delaware Employment Law Letter by M. Lee Smith Publishers, reprinted here with permission.