Background Checks – A Double-edged Sword | DCR Workforce Blog

Background Checks – A Double-edged Sword

Doing a term in jail must not disqualify a person from a return to normal life – especially when the social milieu and background may have conspired to force certain choices in life – which is why the EEOC strives to see that background checks are used in a fair manner and judgmental attitudes do not cause discriminatory hiring practices.

Right to a New Life:

A poignant story by O’Henry called ‘the Cop and the Anthem” starts with the character Sid a.k.a. Soapy who has been to jail a few times, is now jobless and homeless and desperately trying to get arrested and go back to jail for a 3 month term so that he is assured of food and shelter during the bleak winter days ahead – and tries one misdemeanor after another through a whole evening but somehow no cop could be bothered enough to nab him. Then Soapy ends up at the house he lived in as a child, hears the National Anthem being played somewhere and resolves in a rush of zeal to turn a new leaf and start life afresh, stop being a jailbird and seek employment and live a life of dignity and promise. The very next minute, he gets arrested for loitering and gets sentenced to jail for 3 months the next day, partly because of his prior conviction record!

Negligence or Discrimination? Take your pick:

Performing background checks – including criminal record checks – protects employers from charges of negligence in hiring, supervision or retention. So, on one side, the business faces liability for the rule/law breaking employee who may have harmed someone, especially so when the employment handed them the means to cause that harm, as when a financial fraudster or computer hacker gets hired by a bank and defrauds its customers of their hard-earned savings or a person with a history of dangerous driving is hired as a driver and causes accidents. Most companies deem it a safe practice to do one more background check, to prove the exercise of reasonable care, even when an existing employee is being given new and different responsibilities.

These very same checks, whether conducted in-house or assigned to a third party, could result in the employer facing charges of liability for denying equal employment opportunity to a specific group of applicants or employees defined by race, sex, religion, national origin, disability, age, etc. So, employers need to learn to juggle with concerns about cost and time incurred and the choice between general or criminal background checks, and then get a hang of using the results obtained in an appropriate and informed manner.

Does the Business need it?

The EEOC forbids employers from making conviction records a barrier to hiring, while some states ask the employer to prove that the previous conviction record renders the person unsuitable for the position in question.  Many states are limiting the employers from obtaining the background information on the employees. The contingent workforce hiring is one area where the background check policies may render the employers liable for discriminatory practices in conducting the background checks and also in the way the information is used. The federal Fair Credit Reporting Act puts barriers against having third parties involved in performing background checks. Moreover, credit checks are held to be not predictive of job performance and asking for them will need strong validation.

Employers need to tailor the background checks and screening methods to the nature of job being offered.  Even if there is a record of conviction, aspects like the nature and gravity of offense, time since the conviction and completion of the sentence must be looked into before disqualifying any applicant(s).

The fact remains that Law is never static and has varied and changing approaches to many things – and has myriad interpretations and applications. Time was when poor people were thrown in debtors’ prisons for being unable to repay their loans and theft (even by a small child) was punished by a hanging and could result in the loss of one’s hand in some countries as on today! While it is sensible to be on guard, not everyone with a conviction will turn out to be a hardcore criminal or Hannibal the Cannibal!

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.