Ban the Box and Employee Background Checks

June 11, 2018

Fair chance laws impact candidate background screening

Pre-employment background screening, including criminal and credit histories, resume verification, and drug testing, is an important tool in the hiring process for most organizations. These tests help employers make informed decisions about a candidate’s qualifications as well as assess potential liability they might expose the company to as a result of an addiction or criminal history.

Over the last few years, there has been a growing trend across the U.S. to pass legislation that restricts how and when employers can review candidates’ criminal histories. This can make an impact on employer hiring and screening processes.

 

Employer background screening programs reveal hidden issues

A benchmark survey by HireRight found that “85% of survey respondents uncovered a lie or misrepresentation on a candidate’s resume or job application during the screening process – up from 66% five years ago.” Additionally, more than three-quarters of employers said an issue discovered through screening would not have been caught otherwise.

 

Types of employment screenings

Employers may choose to conduct different levels of screening intensity for their programmes, depending on the position to be hired, industry regulations, and compliance requirements.*

 

Type of Screening U.S. Compliance Issues
Criminal records check Required in some industries and generally allowed as long as employers comply with the Fair Credit Reporting Act and with state and/or local Ban the Box laws (see below). Organizations should consider Negligence Liability as a good reason to include criminal history in employer background checks.
Credit history Must comply with the Fair Credit Reporting Act. Required for licensure of employees in some financial services roles. Some states restrict these screenings to certain types of employees.
Reference checks All organizations should make use of this effective tool for learning about a candidate’s work ethic and character.
Educational and job history verification Used to verify applicants have been forthright about their employment history, training, certifications, and university or technical degree.
Legal worker status I-9 verification required for all candidates hired.
Driving history U.S. DOT screening, including drug testing and medical screening is required for commercial drivers.
Public safety verification (terrorism lists) As required by the Patriot Act, certain organizations and industries must screen against official terrorist and terrorism financing lists.
Social media screening A review can reveal information about candidate behavior or beliefs, but employers need to be careful about using any information that reveals EEOC or ADA protected characteristics (race, religion, gender, disability, sexual orientation) in making an employment decision.

 

*Please note that the information presented in this article should not be relied upon as legal compliance advice. For clear guidance applicable to your organization, consult your legal counsel.

 

The impact of state and local Ban the Box laws

Some states and local civil rights groups are pushing to ensure that ex-convicts get a fair chance to compete for jobs after they are released. Nearly 74 million people in the U.S. have a criminal history, according to PolitiFact. State and local Ban the Box laws (also called fair chance laws) limit when an employer may ask about a candidate’s criminal history.

In the past, most employers required answers about criminal history on the initial job application, but this practice is changing as more areas pass their own versions of Ban the Box. Some laws allow employers to ask about criminal history after a candidate is selected for an interview, while others make employers wait until after the initial interview or even after a conditional job offer is extended to the candidate. Certain types of employers, for example providers of child care, may be exempt.

Across the U.S., 31 states and over 150 cities and counties have enacted ban the box legislation. The goal is to get employers to consider an applicant’s qualifications, skills, job experience, and training before learning about their criminal backgrounds.

Employers need to work with legal counsel to determine which Ban the Box laws impact their hiring practices and ensure that job advertisements, job applications, interview policies, and background screening practices are in compliance with those regulations. In addition, companies may need to pre-determine how to further assess a candidate if the background check reveals criminal history. What will influence whether that history should change a hiring decision for the candidate?

Although these laws may make it seem like criminal background screening is not worthwhile, attorneys caution employers to remember how costly negligence liability could be in a situation where an employer could have or should have known that an employee was capable of workplace violence. Employers still need to conduct background screenings, but they must be timed correctly in the hiring process.

 

Consistency is the key to an effective, compliant screening program

Employee background screening can be an important tool to help organizations find and hire the most talented individuals. The key to creating an effective program is awareness of applicable hiring and screening laws and written policies and procedures that govern how screenings will be used in the decision-making process. Talent Management solutions from Asure help organizations automating and streamline the hiring process, including recruiting and onboarding so that they can create a consistent candidate experience for everyone.