Is that seemingly qualified, trustworthy individual you want to hire really safe to hire? Can you really know for sure? Companies use background checks to inform and improve the quality of their hiring decisions. However, many are unsure exactly how to evaluate the results of a background check report, especially how to handle a “negative” background check.
Employment background screening needs to be fair to applicants while at the same time helping to deliver the best employees to the organization. These objectives can be challenging, as it can be tempting to use blanket rules to exclude applicants that have characteristics or backgrounds that you might perceive as too risky or simply would rather not deal with.
Instead, employers must create clear markers for any rejection criteria, apply those markers consistently across all applicants, and be sure your decisions meet applicable laws and guidelines. Rejection criteria must be job-related based on business necessity, and considerate of the nature and gravity of the offense or conduct, the time that has passed since the offense or completion of sentence, and the nature of the job held or sought. The Equal Employment Opportunity Commission (EEOC) also wants to see employers perform an individualized assessment when an applicant would be excluded based on the results of an initial criminal background check.
Performing an Individualized Assessment
Here are a few guidelines to help you create an individualized assessment process or align an existing process with industry standards.
1. Maintain a Written Policy
A policy sets the baseline for what and how your individualized process will take place. In fact, according to our compliance survey, the majority of respondents have a written policy for handling criminal record information, yet a surprising 27 percent do not. Create a policy! Then follow it.
2. Consider Creating a Position Specific Matrix to Identify Criminal Records and Ensure Consistency in Application
While matrices should not be used as an automatic disqualifier in most cases (with the exception being regulated industries), they can be useful tools in ensuring consistent application across a business. For example, if there is a minor crime that you believe is not job-related to a specific position, which can be listed as a “pass” or “clear”
on a matrix. If there are other crimes that you believe may be job-related, however, those could be highlighted as “needs review” and escalated to a centralized source.
3. Create a Centralized Process
While our survey shows most companies have multiple people involved in the individualized assessment process, you may want to consider limiting the people involved to those who “need to know.” Doing so will ensure that people with criminal history who are hired are not treated differently or retaliated against and will assist in promoting consistency in how your individualized assessments are conducted. Many employers are creating a centralized review process so that the practice becomes more efficient, generally faster, and promotes consistency throughout your organization
4. Allow a Candidate to Provide Information
In order to conduct an individualized assessment, you will need to gather information from a
candidate so that you can evaluate the individualized assessment factors. The Guidance does not specify how you must gather such information, rather, just that candidates should be given the opportunity to provide information.
Some companies reach out to candidates via telephone to elicit the information. While others allow candidates to provide information at the time they are soliciting criminal history self-disclosure (generally after a conditional offer).
Still ,others choose to elicit such information during the pre-adverse action stage. The Fair Credit Reporting Act (FCRA) requires that employers wait a “reasonable period” between pre-adverse action and adverse action based in whole or in part on a consumer report. The Federal Trade Commission has opined that 5 business days is a reasonable period of time. The purpose of the waiting period is to give candidates time to provide additional
information and/or dispute inaccurate information, if necessary. Some other state and local ordinances require that companies wait a longer period of time (i.e., San Francisco requires 7 days and New York City requires 3 business days from receipt of the pre-adverse action letter).
Take the EEOC lawsuit recently settled by BMW for $1.6 million. The case alleged that BMW excluded African American workers from employment at a disproportionate rate when the company’s new logistics contractor applied BMW’s criminal conviction records guidelines to incumbent logistics employees. It resulted in roughly 100 employees being disqualified from employment—80 percent of those workers were African American.
In the consent decree, BMW agreed to allow a candidate 21 days to provide additional information.
You may want to consider expanding the time frame to allow someone to provide information. Our compliance survey revealed that 33 percent of respondents are waiting longer than 5 business days.
That said, the EEOC has clarified that a company is not required to keep a position open during the dispute process. However, “understanding the intent of the adverse action process is to allow the applicant an opportunity to dispute and keeping the position open enables the intent to be seen through,” said Melissa Sorenson of NAPBS.*
5. Consider Worldwide Consistency
Although individualized assessments are arguably only required in the United States, consistency creates clarity. To give candidates and employees—both domestic and international—equal opportunity, it’s recommended that employers extend the individualized assessment process worldwide. In fact, in our compliance survey, an overwhelming majority of employers surveyed, 71 percent, already incorporate individualized assessments as part of their global hiring initiatives.
6. Train, Train, Train!
Once you have a policy in place for performing individualized assessments, diligently train your staff. Document the training and then periodically audit behavior to ensure compliance.
Information to Consider and Document
About the Candidate
· Candidate name:
· Date company received criminal record notification:
· What was the criminal record returned?
· Did the Candidate self-disclose the conviction?
· Date pre-adverse action notice sent:
· Date adverse action notice sent:
Proof of Contact
· Date(s) the candidate was contacted and by what means:
· NOTE: Proof of candidate contact receipt needed (registered letter, email read receipt)—Attach proof
· Did the candidate respond?
About the Individualized Assessment
· Additional facts or circumstances surrounding the offense? Common considerations: What was the nature and gravity of the offense? Anything else for this job position?
· Age at the time of the offense or time of release. Common considerations: Recidivism rates decline as age increases
· Did the candidate perform the same type of work post-conviction with no known incidents of criminal conduct? Common considerations: If yes, consider hiring.
· Did the candidate do similar work before or after the offense as the job for which they are applying? Common considerations: What is the nature of the job they are seeking now? Anything else for this job position?
· What rehabilitation efforts have been made (school, counseling, courses) Common considerations: Anything else for this job position?
· Can the candidate provide an employment or character references regarding fitness for position? Common considerations: If yes, contact the references to and ask for examples of job duties similar to position being sought. . . anything else?
· Does the additional information obtained during the individualized assessment mitigate the risk for this job position?
· Was the individual hired?
To mitigate the risk of EEOC non-compliance, employers should create and follow a comprehensive individualized assessment process anytime a criminal history is revealed either by a candidate or as part of a background check. Integrating this extra step in the hiring process can protect against costly financial fines, penalties, and judgments, while also helping employers build a more inclusive, candidate-friendly hiring process.
Act now. Create a policy for performing individualized assessments and implement a consistent plan. Document what you accomplish, and you will be prepared.
Contact us to see how we can help!