Employers Best Not Use Criminal Records Background Checks as a One Size Fits All

Criminal records background checks are not a one size fits all.   While most employers do conduct criminal background checks as part of their employment screening program, the idea is to use them wisely.  Wisely, in this case, means don't be indiscriminate to where you can get yourself in trouble with the  Equal  Employment Opportunity Commission (EEOC).   Pepsi Beverages just found its blanket policy, regarding criminal records background checks, cost them a hefty $3.1 Million in settlement fines.

According to the more recent regulations implemented by the EEOC, a candidate's criminal convictions must reflect some relevance to the job for which the candidate is applying.  According to the general EEOC guidelines, and I am simplifying, it may not be relevant for a candidate applying for a position in the motor pool, if he was convicted of a non-violent crime.  But a job applicant convicted of financial fraud wouldn't be eligible for a position in the financial department.

A blanket policy that excludes everyone convicted of a crime is not considered a warranted employment policy.   And, worse, if the applicant was merely arrested or charged, but never convicted, the EEOC has ruled that excluding that candidate from consideration can be discriminatory.    The contention is that many of those with convictions are racial minorities, and therefore such a blanket policy can prove discriminatory.   There is also the matter of the age of the crime, how long ago someone was convicted.  Then consideration should be given for the severity of the crime.

In the recent case where the EEOC sued Pepsico, the article in the Associated Press reports...."

"EEOC officials said the company's policy of not hiring workers with arrest records disproportionately excluded more than 300 black applicants. The policy barred applicants who had been arrested, but not convicted of a crime, and denied employment to others who were convicted of minor offenses.

Using arrest and conviction records to deny employment can be illegal if it's irrelevant for the job, according to the EEOC, which enforces the nation's employment discrimination laws. The agency says such blanket policies can limit job opportunities for minorities with higher arrest and conviction rates than whites."

This is an imperfect world and there will always be discrimination of some kind.  The trick is to limit that discrimination as best as we humanly can.  And then, sometimes there is overcompensation and the results may appear unfair to the employer.  In all, hiring employees with criminal convictions can best be viewed like a work in progress.  And like all works in progress, we can expect any number of changes.

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Comment by Megan Bell on January 19, 2012 at 2:10pm

Thanks for the post Gordon, I hadn't heard about this yet

Comment by Aaron Lintz on January 19, 2012 at 3:01pm

It has always been a nuanced law, but businesses and recruiters have ignored the signs that changes are coming.  This is what I deal with all day so I'm glad to lend a hand to anyone who wants to review their policies.

Comment by Karen A. Watt, CPC, CEO on January 19, 2012 at 4:36pm

This is so True Gordon, thanks for showing others what can happen if they use this information unwisely.

 

Comment by Sandra McCartt on January 19, 2012 at 10:54pm

Gordon, Is there a problem if it is a felony conviction blanket policy as opposed to a misdemeanor or is it any blanket policy concerning conviction of a crime either felony or misdemeaor?  I have several clients who disregard most misdemeanors unless they are violent in nature but they have blanket policies of no felons.  Many apps ask the question, "Have you ever been convicted of a felony?"  Should that be taken off of applications?

Comment by Valentino Martinez on January 19, 2012 at 11:27pm

Agreed, Gordon-- They best not.

Comment by Gordon Basichis on January 20, 2012 at 11:18am

Sandra, increasingly the EEOC is cracking down on anyone with a blanket policy where the feel the crime that was committed is not relevant to the position being applied for.  Also the age and severity of the crime should be taken into consideration.  Like many other rulings, there are notable contradictions.  For example, what do you do with a convicted rapist, regardless of his position, when you have numbers of women in your workforce?  And then the violent crime issue, with rape, of course, being one violent crime.  

The "have you ever been convicted" is kind of a mixed bag.  On one hand if the candidate fails to check the box and you find criminal records, you can refuse hire because he lied.  But then in, say, Philadelphia and some other places they are getting rid of the box, a ban the box movement, literally.   Opponents of the box claim is it is discriminatory as once an employer sees the box checked, the applicant is no longer a viable candidate.  

I would say if employers come under scrutiny from the EEOC it would be hard to justify say a felony drug conviction, or a paper hanger, forger/bad check writer, for someone loading the truck.   So a company with a blanket felony policy may be vulnerable to charges brought by the EEOC.

It's a tough call.  The other side of course is if someone with a criminal record does go on a rampage on the job then the public, the media, all wonder "why did they hire him in the first place?'  And then the employer is left with all the liability issues, which can be considerable.  But then many felons, if given the job, and if they are drug free and all the rest, tend to do the job and sometimes, because they know the consequences of losing the job and finding another, work harder and more diligently.  

So arguments abound.  But right now, the EEOC is definitely chasing down employers with blanket policies.

Comment by Sandra McCartt on January 20, 2012 at 2:18pm
Thanks Gordon, my clients are struggling with having to make decisions on a case by case basis but still trying to be consistent. Almost like they have to be judge and jury all over again. I think it is going to be a mess.
Comment by Gordon Basichis on January 20, 2012 at 4:04pm

When I am asked, although we can never tell clients who to hire and who not, we do recommend they look at the age of the conviction, whether it was violent and, essentially, whether the candidate cleaned up his act or is, more or less, a habitual criminal.  The other consideration is the sex offender.  This can prove toxic to the workplace, as sympathy for the sex offender, especially one who has committed crimes against children, is, to be kind, in very short supply.  Many employees are very uncomfortable, to say the least, working with pedophiles.  Women hate him and men want to kill him, at least it's the general rule.  And yet, I have one client tell me his pedophile employee, was his best worker and the only one who could do the job.   As for what he did and to whom, believe me, you don't want to know.

Comment by Sandra McCartt on January 22, 2012 at 5:56pm
I would close the doors, move to the Milargo Bean Farm and eat rocks before I would represent a child molester. Period!
Comment by Gordon Basichis on January 23, 2012 at 1:31am

I understand.  More than a few would  join your move to the Milagro Bean Farm.  If nothing else, you would have a lot of help with irrigation.

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