What's on YOUR background check? (Part 1 of 2)

While tracking the Google search terms that lead people to these articles, one thing has become abundantly clear - many job seekers are curious to know what's on their background check, more so than corporations looking for information about their own background screening programs and policies.

There are no hard and fast answers to any of the questions job seekers ask Google, because the background check industry changes on an almost daily basis. But there are some basic guidelines. Following are brief answers to a few of the most common questions about background checks:

Can my online (Facebook, Twitter) reputation be used against me?
The short answer is "yes" - if you are looking for a job, take down that drunken party picture on your Facebook profile right away. As we outlined in a previous article, the legality of using Facebook as an employee screening tool is questionable and depends entirely on what information is being used. An employer may be exposed to information about your religion, marital status/sexual orientation, or pregnancy but they aren't legally permitted to use that information in making a hiring decision. But if your Facebook page suggests drug use or other illegal activities you may never get a call back.

We always recommend that employers refer to more official records like convictions and verifications of employment, but there is no law that says an employer cannot look you up on Facebook.

After I'm convicted of a crime, how long will it continue to show up on my background check?
This is probably the most common question about background checks, and it's also the most difficult to answer. As a general practice, background screening firms look for information from the past seven years - this time frame includes disposition, so if your 3 year probation ended in 2005, it's going to be on your report. Several states have even enacted laws restricting information past 7 years but the Fair Credit Reporting Act, the federal law that governs employment background checks, does not set a maximum time frame for reporting convictions.

This means that a speeding ticket from 1995 is reportable in one state, whereas a violent assault from 2003 may not be reportable in another. Also, the 7 year rules in some states aren't set in stone and may be ignored based on certain variables - whether you've been convicted of other crimes since your first offense, the severity of the crime (sex crimes and manslaughter are frequently exempt from reporting restrictions), and even your anticipated salary may determine whether a crime can be included on your report.

If I'm not applying for a financial position, why are you checking my credit?
The Fair Credit Reporting Act (FCRA) was originally created to govern the use of credit reports, but then expanded to include any type of data (criminal convictions, driving records, professional references) that a consumer reporting agency may prepare about you for employment purposes. Virtually any part of any report prepared by a screening agency falls under the FCRA, which means you need to authorize the background check before it can be run, and you are allowed very specific rights with regards to your report.

Credit reports, specifically, speak volumes about an individual's level of personal responsibility and organizational skills. Even so, more employers are relying on this information only when it's for a financial position. Several states (Connecticut and Illinois, for example) have even passed laws restricting the use of credit reports unless there are specific financial aspects to the position.

There are more questions, and we have the answers. If you have a specific question about background checks, please leave a comment below and I'll be sure to answer it in the second part of this series.

Criminals, CORI, and the misinformed media

Editor's note: Though I always include specific references to other articles, based on the tone of this article I do not feel it's appropriate to single out individual journalists or media outlets. 

Throughout the last decade's explosive growth of pre-employment background checks, the news media has published hundreds or even thousands of stories. From business behemoths like the Wall Street Journal to community papers in rural Oklahoma, media coverage helps to influence the perception employers and job seekers have of the background screening industry. Unfortunately these articles are commonly filled with misinformation or misguided calls for action.

Take, for example, the recent coverage of the Equal Employment Opportunity Commission's hearing about background checks. The most accurate articles describe the confluence of opinions and expert testimony about background screening. But some creative journalism apparently reads between the lines and tells employers that the EEOC is proposing a ban on background checks for prospective and current employees¹. The article continues to rehash the details of the hearing, without any details to support the so-called ban, and wraps up by asking readers to write the EEOC and oppose their proposal.

The problem? The EEOC didn't propose a ban; in fact, they didn't propose anything. Further, the hearing began by recognizing the importance of background screening to prevent acts of violence in the workplace. The whole purpose of the hearing was to analyze the positive and negative impacts of background checks on communities as a whole so the EEOC can develop a plan or proposal to take to lawmakers.

In Massachusetts, a law passed in 2010 that reforms the state's criminal record database, referred to as "CORI". One of the most highly regulated and complex criminal record databases in the country, CORI is well-known and often notoriously misunderstood in terms of what it includes and how it's used. Perpetuating the myths and misunderstanding? You guessed it: the print and television news media in Massachusetts.

A news source with perhaps the highest readership in Massachusetts² published a short informative guide for employers and job seekers, explaining how a minor criminal record would not likely hold up a job seeker's employment. Although the author's interpretation of CORI was based on some knowledge of the law, her explanation was incomplete and misguided. For example she quoted some parts of the law that have not yet been enacted and didn't take into account that there are many more ways to obtain criminal records than just using the highly restrictive CORI system.

In a recent "special investigation", a local³ television news agency exposed the "loopholes" in the CORI system. The loophole is nothing more than common knowledge about state-maintained criminal record repositories: that the information contained therein is limited just to that state. The same "loophole" exists in the other 44 states that make criminal records available on a statewide level.

To its credit, the investigation exposes the public safety issue that the loophole creates. Massachusetts' requirement for many safety-sensitive positions is limited to CORI and doesn't statutorily require employers to look at the big picture. Additionally a slice of the general public undoubtedly were (and still are) unaware that CORI is not the end-all, be-all source of criminal records. But to imply that the team's crackpot investigative skills uncovered a dangerous secret, this group of journalists is doing nothing more than patting each other on the back.

At the core of each incomplete or misinformed news story is an important message and some useful information. Readers must keep an open mind when reviewing this information and seek the whole story before taking action. Employers should speak with objective legal counsel or experts in background checks to understand the bigger picture, and job seekers should fully understand their rights when dealing with their pasts.




Notes:
1. Per an article in a trade publication for the food service industry.
2. Blog on a job board website published by a Boston multimedia news agency.
3. Boston affiliate for a major television network.

Are you discriminating? EEOC believes so.

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:

Employment Law recap of the EEOC meeting

EEOC Release regarding the meeting