Criminal background checks may lead to just as much trouble as they uncover

At the beginning of the year, the Equal Employment Opportunity Commission (EEOC) was mixing it up with Pepsi Beverages Co. The issue? Pepsi was arbitrarily screening out all applicants whose background check revealed an arrest, whether or not that arrest led to a conviction.

At first glance, some might say that is a reasonable policy. Pepsi has every right to do all it can to protect the company from potential “bad seeds”. However, their policy led to a disproportionate number of black candidates being disqualified. And that got the attention of the EEOC. Though the Commission did not find any intentional discrimination — and Pepsi agreed to revise its hiring practices — Pepsi still ended up shelling out $3.1 million to settle the federal charges of race discrimination.

Once again, we hear a caution against overly broad policies. In this case, the EEOC recommends that you stop and take a breath if you receive a bad background check for a candidate. Consider the nature and gravity of the offense, the time that has passed since conviction or completion of a sentence, and the nature of the job being sought.

And it might not hurt to remember that, just like some candidates, criminal background checks can be flawed. Many contain incorrect or misleading information. Background checking companies are not required to obtain a license. Anyone with a computer and access to public records can declare themselves open for business. Another good reason for companies to carefully consider their next step.

Want to protect your company? Consider these best practices as you approach background checks:

  • Determine the business purpose for gathering criminal history and document that reasoning before you post the position. For example: if you are hiring a preschool teacher, you obviously don’t want someone with a record of violent crimes. If you are hiring an accountant, you want to avoid anyone who has been convicted of theft or fraud. This practice will allow you to narrow the criminal background check to seek only relevant information.
  • Don’t run a check until after you have made a conditional offer of employment. Select your ideal candidate based on experience and education first and make your offer. THEN run the check. (Hint: Remove the “criminal history” questions from your applications.) Be sure that you are consistent with this process. Run the same background check for all candidates in similar positions or with similar responsibilities. Don’t leave any room for accusations of selective screening.
  • Keep it in context. In general, if the criminal conviction was relatively minor and occurred more than five years ago, you can probably let it go. However, if it was more recent, more serious, or there is a history of repeated offenses, you will need to consider that against the position being filled. Again, whatever you decide, be consistent. Treat all candidates equally.
  • Give the candidate an opportunity to respond. His/her explanation of circumstances, rehabilitation efforts, or references may be just what you need to make that decision—either way.
  • Protect candidates’ privacy. Sharing of any information should be as limited as possible. Any negative information found should be shared with the hiring manager only if it is considered relevant to the position.
  • Document everything. As always, keep good records of any decisions that result from information found in a background check.
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