If you haven’t already reviewed your screening and hiring policies on applicants with criminal records put it on your “to do list” for 2010. Highly published and expensive lawsuits related to negligent hiring make it seem that background screening is necessary step in your hiring process- but is it? With experience both as a HR Director and working for a leading background screening vendor, my answer is maybe- it can be an important step and will reduce risk but only if done in accordance with best practices and within the state and federal regulations.
The Employment Opportunity Commission (EEOC) and the federal courts will soon require evidence-based screening and hiring policies. Within the next 12 to 18 months, employers can expect to see the EEOC issue new guidelines that require empirical evidence for the “business necessity” defense in racial discrimination cases that arise from screening and hiring practices. Employers will benefit from having clarity in what is permissible. If you now use the common five-year, seven-year, 10-year or lifetime employment bars for people with criminal records you need to think about how you can validate this information and show business necessity for the specific employment bar. Most screening vendors claim that criminal checks reduce workplace violence, theft and fraud, but don’t have any meaningful empirical evidence- with the expected EEOC guidelines and recent lawsuits on discrimination based on background screening they should be working to produce this information over the next several months. If you current vendor can’t help you will need to consider a new vendor. Employers may also look to the work of social scientists such as Alfred Blumstein and Shawn Bushway. Blumstein published a major study in 2009 that actuarially identifies the point at which an individual with a criminal record is at no greater risk of committing a crime than other individuals of the same age.
The bottom line is that employers should not use background screening as the only criteria for hiring or screening applicants. Behavioral interviewing and assessment testing along with reference checking are also important tools. If you are using background screening having job-specific hiring policies and a case by case review of all background screening results is recommended- and don’t forget two time tested HR practices for mitigating risk: proper supervision and effective performance management.
Join the conversation: Do you use background screening in your hiring process and do you believe it reduces the risk of a bad hire or a negligent hiring lawsuit?
Tags: Department of Labor, EEOC, employment discrimination, Enforcement, HR best practice, HR compliance, litigation