On Tuesday, July 26 a panel of experts assembled at the Equal Employment Opportunity Commission's DC office to discuss the impact of arrest and conviction records on protected groups. The very practice of pre-employment background screening was placed under a microscope and dissected. At the core of the debate was the domino effect background checks have on reformed criminals - high recidivism rates and social services costs, for example, can be attributed to the use of criminal records to deny employment.
Despite the clear benefits of using background checks to keep dangerous people out of the workplace, many criminal records do not immediately suggest that an individual is dangerous. Most employers eventually find "gray area" data, such as older misdemeanor convictions, that is more difficult to adjudicate. The use of this gray area information caught the attention of the Equal Employment Opportunity Commission who believes that employers aren't always using it fairly. Too many employers, says the EEOC, enforce a simple "blanket policy" regarding criminal records - basically, if you've been arrested or convicted, we won't hire you. The blanket policy leads to higher recidivism rates from those who are unable to re-enter the workforce after completing a jail sentence, and in particular discriminates against protected classes who have higher arrest and conviction rates than other classes.
The EEOC's current objective is to develop a plan to influence lawmakers to fix what they feel is a broken system. Currently however, it is up to individual employers to stay out of the EEOC's crosshairs by maintaining a safe, nondiscriminatory work environment:
- Ditch the blanket policy. Enforce a background screening policy that specifically filters out dangerous people, or people who could affect your bottom line (recent larceny convictions, for example).
- Remain open-minded. Several organizations at the EEOC meeting discussed the tremendous success they've had helping reformed criminals re-enter the workforce. The relationships between these employers and their employees are built on honesty and loyalty.
- Understand your state laws. New York's correction law specifically prohibits so-called blanket policies - before making an adverse hiring decision, an employer must demonstrate that an individual's criminal past creates a specific threat of harm for that employer.
- Identify contradictory regulations or pressures. For example, New Hampshire hospitals are prohibited from hiring anybody with a felony. Many hospitals work with social services organizations that may apply pressure to hire individuals with a criminal past, and are perhaps unaware of the hospital's legal requirement to deny employment to felons.
- Use only official court or state records. The EEOC discussed instant criminal databases, which are notoriously inaccurate and commonly falsely flag people as criminals. Despite the prolific criticism of databases, many employers still rely on them and turn down employment to qualified individuals without realizing they may be violating the law.
Reputable background screening firms like PT Research can help employers navigate the legal minefield regarding background checks by developing a thorough, compliant screening program. The Equal Employment Opportunity Commission's next steps are not determined at this time, but we will continue to provide updates as the EEOC develops its strategy to level the playing field.
Sources:
EEOC Release regarding the meeting
