It’s no wonder that companies are increasingly concerned about the character and history of the people working for them. ADP tells us that an examination of 1.7 million criminal history background checks performed showed that approximately six percent revealed a criminal record within the last seven years. Hayes International reported that one out of every 33.2 employees were arrested in 2010 for workplace theft. Perhaps most frightening – this past summer the Bureau of Justice released findings showing that on average, 700 people are murdered at work each year and a half a million are the victims of non-fatal violence in the workplace!
Historically, the screening practices applied to non-employees was less rigid in most companies. Now, however, as companies are increasingly dependent on contingent workers and other non-employees, the anxiety rises. DCR recently was asked by a client’s Human Resources executive whether criminal background checks should be conducted for all workers, whether permanent or temporary, as a routine, every x months.
That is really a very good question and one which needs a little background information before it can be answered. The Equal Employment Opportunities Commission (EEOC) carefully scrutinizes the need for background checks. It also strongly penalizes any employer who conducts criminal background checks or drug testing without making sure that they will not discriminate against, intentionally or otherwise, a certain sub-section of job aspirants/workers. If this testing is undertaken on existing workers, it could cause really serious problems for an employer, as was conclusively proved by the court’s ruling in a recent case against BMW.
What BMW did was something very similar to what our client was planning to do. They submitted existing workers for criminal background checks in a routine screening initiative which covered not just new hires but existing employees too. This goes against the policies of EEOC, which has been seeking to ban the box entirely!
The EEOC sued BMW Manufacturing, claiming that the company’s actions were discriminatory towards African-Americans. Going into the antecedents of the case, BMW engaged a new logistics contractor at one of its facilities and required the new contractor to perform criminal background checks on all new applicants and existing workers at the facility. BMW also employed strict hiring exclusions against persons with convictions in certain categories of crime. This hiring policy resulted in the denial of continued employment to 100 incumbent workers.
According to the EEOC, 80% of those affected by BMW’s mandate were African-Americans. This in turn was a sure violation of the Civil Rights Act and its stipulation that one particular person or group of persons, belonging to a race, sex, religion or ethnic group, may not be disproportionately affected by an employer’s actions. BMW was also unable to offer a reason for the screening or prove that it was necessitated by the needs of the business. Taken together, the disparate impact and the lack of business necessity made it possible for the EEOC to bring a very strong case against BMW. BMW has since paid $1.6 million to avoid litigation and offered job opportunities to the employees who suffered from its discriminatory practices. It has also offered employment opportunities to 90 African-American applicants who were earlier denied employment on account of their conviction records.
As we have repeatedly mentioned in DCR blogs, employers need to balance their actions in order to stay compliant with regulatory requirements. Background screenings are an important tool in ensuring the safety of the workplace for both permanent and contingent workers. However, there must be solid business reasoning behind the screening policies, the practice must be universally applied, and sound judgement must govern the assessment of adverse results. There must be a clear correlation between the nature of the offense and increased risk to the work environment. Evaluation policies must also take into account the time that elapsed since the conviction. Arbitrarily conducting repeat background checks on workers will probably not weed out potential high risk individuals, but it will put the company at a higher risk of an EEOC complaint.
To learn more about the risks and rewards of background checks and drug testing, you may want to check out the related posts. Any additional questions? Contact us.
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