Background Checks in Hiring: Discrimination or Due Diligence?
Can Employers disqualify Job Applicants for having a Criminal past?
You’d think the answer might be a flat “yes,” but it turns out the answer may not be so clear cut, reports the Associated Press.
The Equal Employment Opportunity Commission has been cracking down on efforts to disqualify potential hires with criminal records or bad credit history, arguing that the practice can be tantamount to discrimination, as such applicants are disproportionately black or Latino.
Companies have increasingly sought to weed out applicants with bankruptcies, court judgments or credit problems in recent years, as improved technology has made the task easier and easier.
“Our sense is that the problem is snowballing because of the technology allowing these checks to be done with a fair amount of ease,” said Carol Miaskoff, assistant legal counsel at the EEOC, in an interview with the AP.
But some employers say the information gleaned from such databases are critical to making hires that will help them maintain a safe work environment.
“Past indiscretions may be an indicator of future behavior, especially in the criminal context,” Chicago employment lawyer Pamela Devata told the AP.
A blanket refusal to hire someone with a criminal record could run afoul of federal employment law, though. According to the story:
If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred. For example, it may make sense to disqualify a bank employee with a past conviction for embezzlement, but not necessarily for a DUI.
The EEOC indicated its disapproval of such practices last fall, when it it filed a class-action discrimination lawsuit against Dallas-based Freeman Companies, an events planning firm. The EEOC alleged that Freeman Companies used credit history and criminal records to discriminate against against blacks, Hispanics and males. Freeman has denied the charges, according to the AP.
Criminal Background Checks Upend Job Search For Some Unemployed
First, the College sent a letter.
It welcomed Curtis Andrews, Ed.D, Ph.D, to its adjunct faculty. A few days later, the emails about faculty orientation sessions and department meetings started arriving in Andrews' email inbox. But when a college human resources officer called him three times to ask for details about his 2006 wire fraud conviction, Andrews started to suspect that the job was no longer his.
“He just said, 'We’ll be in touch,'” said Andrews. “By that point, I had filled out, I guess, 70, 80 applications. So, I knew all about the box I have to check saying I have been convicted of a crime and that the applications all say that having been convicted may not prevent you from being hired. But you do get the sense that they get one look at a conviction and they put you in the technological trash … This time, they apparently thought I was qualified, then changed their mind.”
About 65 million Americans -- that’s one in four adults -- have an arrest or conviction that can show up on a routine criminal background check. What’s found can effectively upend their search for work or put them out of a job amid one of the most difficult job markets in recent history, according to a new report released by the National Employment Law Project.
In fact, in the years since the Sept. 11, 2001, attacks, criminal background checks calibrated to detect everything from arrests on dismissed or expunged charges to misdemeanor and felony convictions have become an increasingly common part of the job application process. A 2010 survey of the Society for Human Resources Management's member firms found that more than 90 percent routinely probe job applicants' backgrounds. The trade group’s members are mostly large employers.
A booming private criminal background industry has made clients of all kinds of companies doing everything from cleaning offices and delivering pizzas to sorting and delivering retail merchandise, said Maurice Emsellem, a policy co-director for the National Employment Law Project and one of the researchers behind the NELP report.
The National Association of Professional Background Screeners, a North Carolina-based industry trade group, could not be reached for comment.
“The industry of private screening firms, they make a big buck off of these practices,” Emsellem said. “They’ve got better and better at identifying and isolating employers who don’t use criminal background checks. The marketing pitch goes something like this: 'All your competitors are doing criminal background checks. Do you want to take the alleged risk?'”
What’s never mentioned is the growing body of evidence suggesting that after as few as three years –- depending on the person’s age and original crime -- people released from prison are no more likely than the general population to commit more crime, Emsellem said. But failing to find legitimate work is a major predictor of a return to jail, according to the NELP report.
That’s part of the reason why nonprofit agencies and even some corrections departments throughout the country are working to help ex-offenders find jobs.
"I think we’ve finally reached the point where people are starting to realize that if we have 3 percent of the world’s population but 20 percent of its prisoners, disqualifying that many people from work once they get out just isn’t sustainable," said Todd Berger, the managing attorney with the Rutgers School of Law-Camden’s Federal Prisoner Reentry Project. Berger oversees a law school clinic in which students seek to resolve some of the issues preventing federal parolees in the area from obtaining work.
In Maryland, Catholic Charities of Baltimore established the Our Daily Bread Employment Center four years ago. The center helps people with criminal backgrounds and limited job skills find work. The program reports serving more than 3,000 people in fiscal 2010. Since July, Our Daily Bread has helped place in jobs 296 of the 540 people who committed to the most intensive part of its program, according to Karen Heyward-West, a program manager for employment services.
Our Daily Bread informs employers about tax credits available to companies that hire ex-offenders, but Heyward-West said one of the program’s most effective tools is the mock interview. About 80 percent of the companies that send volunteer representatives to conduct mock interviews wind up offering to hire the center's clients, putting in a good word at their company for the program or referring clients to job opportunities elsewhere, she said.
“I am just going to be really honest -- there is a fear,” Heyward-West said. “There are people, employers who think we don’t want to hire those people, people with (criminal) backgrounds, people who were previously homeless. That’s a big part of what we have to overcome.”
In 1987, the Equal Employment Opportunity Commission, the nation’s workplace discrimination watchdog agency, issued a statement that declared employer policies that disqualify any job candidates with a criminal record likely illegal. Employers are supposed to consider the age and nature of a conviction and its relevance to the job. Because a disproportionate share of African American and Latino adults have criminal records, blanket policies can effectively discriminate against groups protected by U.S. civil rights law, the commission said.
Still, the National Employment Law Project report found ample evidence of job ads that overtly exclude anyone with a criminal conviction. In a review of ads posted on Craigslist during a four-month period in five major cities, researchers found more than 300 ads in which employers stated that applicants with criminal records would not be considered. One ad for a sewer cleaning technician read, “***Do not apply with any misdemeanors/felonies.***”
“This is a major civil rights issue and a violation of the law,” NELP's Emsellem said.
There are entire industries where people with any type of criminal history –- no matter how minor or old –- will have difficulty finding work. After 9/11, the U.S. Department of Homeland Security began requiring truck drivers to undergo background checks in order to pick up or drop off loads at certain locations, such as ports. Truck drivers with a criminal record can request a waiver, but if the waiver is declined, a driver’s ability to work just about anywhere on the east or west coast is virtually destroyed, Berger of the Rutgers-Camden law clinic said. At least three or four times per semester, Berger said, his clinic hears from a truck driver who is having problems getting the necessary clearance to work at a port.
The situation defies reason, Berger said.
“You can understand how someone with an embezzlement conviction should not work in a bank or why someone with a child pornography charge should not work with kids," he said. "But you cannot understand how a drug conviction should disqualify someone from driving a truck or working as a janitor for the rest of their lives.”
A series of lawsuits filed last year against staffing companies and corporations has highlighted just how common blanket bans on hiring applicants with criminal records have become. A 2010 suit filed against First Transit, Inc. alleges that the busing company won’t hire anyone who has been convicted of a felony or served a single day in jail.
The practice isn’t limited to private employers. A class action lawsuit filed last year claims that the U.S. Census Bureau has refused to even consider applicants with criminal records for temporary Census jobs.
“Another part of the problem is the total lack of regulation on background check providers and the extremely high number of errors that pop up in their reports,” said Elizabeth Farid, deputy director of the National HIRE Network. HIRE is a New York-based nonprofit founded by the Legal Action Center, an advocacy group that opposes hiring discrimination against those with criminal records, HIV/AIDS or a history of addiction.
HIRE distributes information and advocates for policies that may expand job opportunities for people with criminal records. It also runs The Rap Sheet Workshop, in which job seekers with a criminal record are taught how to discuss their past in a frank but productive way. Participants are also shown how to identify duplications and errors and find help getting their records corrected.
Some cities, including Chicago, and states such as Michigan have implemented policies that require public agencies or private employers to stop automatically screening anyone with a criminal record out of the applicant pool.
But, there are also places like New Jersey.
Andrews called the New Jersey Office of the Attorney General after the community college backed away from his job offer. Andrews said office staff told him that they were no longer taking on criminal background check-related civil rights cases.
In an email, the New Jersey attorney general's office declined to comment on Andrew's case or its plans to pursue cases involving employers and criminal background checks.
“If I had a hard time, I don’t know what the hell some of the people who are being released form jail are supposed to do,” said Andrews, who has found an adjunct slot teaching liberal arts courses at another New Jersey community college. “People have to be able to work.”
Killing puts background checks in spotlight
The killing of a south Charlotte store manager - allegedly by a felon hired to work there - highlights the risks companies take when they hire an employee with a criminal record, or don't do a full background check on applicants.
The Flying Biscuit Cafe in StoneCrest shopping center faces possible fines or other penalties from the Alcohol Law Enforcement division for hiring Mark Anthony Cox, 22.
Background checks are only legally required in certain fields, such as child care and for people who work with the elderly, but the Flying Biscuit could be penalized because businesses aren't allowed to hire Felons convicted in the last three years for jobs that involve serving alcohol.
Cox is accused of stabbing 25-year-old Danielle Watson to death and robbing the store the night of Jan. 13. Prosecutors also have said they plan to charge Cox with a second count of murder in connection with Watson's unborn child.
He was released from prison in November, state records show, after serving nearly two years for robbery and breaking and entering.
A state Department of Crime Control and Public Safety spokeswoman said the Flying Biscuit's owner told ALE agents that a background check wasn't performed on Cox. The owner did tell WBTV that Cox had acknowledged a conviction during his interview. It's not clear if the owner knew the nature of the conviction.
Attempts to reach Flying Biscuit owner Hugh Bigham were unsuccessful Friday.
"A lot of small employers just don't think about background checks, or say they don't have the money," said Kenny Colbert, president of the Charlotte-based human resources group The Employers Association. He said the cost of a full screening is usually about $50, although there are North Carolina-only screens that go for as little as $10.
In the Charlotte region, Colbert said, 90 percent of companies with 500 or more employees do pre-hiring background checks, based on a survey of The Employer Association's nearly 900 member businesses. In contrast, only about 20 percent of firms with 20 or fewer employees said they do background checks.
Companies that don't conduct background checks on employees could be exposing themselves to legal liability, Colbert said. Employers lose more than 70 percent of negligent hiring lawsuits, according to statistics from background check company American DataBank.
Employers spend roughly $2 billion a year checking out employees, according to published reports. A wealth of material also is available free online, such as N.C. Department of Correction records, which detail Cox's prior conviction.
Timothy Keister, general partner at Charlotte-based background check company Total Screening Solutions, said business has been steady through the recession and recovery. He said his company does background checks and drug tests on behalf of large employers, but also for smaller employers.
"In this bad instance we have here, more than likely we would have pulled it up," said Keister, talking about Cox's past conviction.
He said his role isn't to tell employers whether to hire someone, but to enable them to decide based on the facts.
Advocates for those with criminal records point out that nearly everyone who is sentenced to prison will be released at some point, and they are less likely to be involved with further crimes if they can find legitimate work.
Employers shouldn't assume that someone with a criminal record will cause harm in the workplace, said Myra Clark, executive director of the Charlotte-based Center for Community Transitions, which provides employment and transition services to people with criminal records.
"There are a lot of people who have an encounter with the criminal justice system, and that's the only encounter they're ever going to have," she said. "There are people who make a conscious decision to change their lives."
Often, a search of someone's criminal record will show arrests for charges that may later have been dismissed. That might make it difficult for employers to determine which charges they should pay attention to, Clark said. Last year, background check company HireRight agreed to pay $28.4 million to settle claims related to not notifying people their background was being checked, and not responding to complaints of inaccurate information.
Outside of industries that are legally required to conduct background checks, there's little in the way of universal standards when it comes to employer liability, said Bernard Tisdale, managing partner for the Charlotte office of labor law firm Ogletree Deakins.
"It's all a matter of degree," said Tisdale. "It's all gray. Not everybody has got a duty to do a background check."
Aside from extreme cases - "bringing on the convicted ax murderer with ongoing psychological problems," as Tisdale put it - employer liability can vary greatly. It depends, for instance, on the type of business, and whether the employer kept the employee on despite warning signs.
Tisdale also said employers could put themselves at risk of legal action if a background check prompts them to improperly reject an applicant.
Colbert tells employers to examine how relevant and recent a prospect's criminal record is.
Background checks have figured in several high-profile N.C. cases. The estates of two women who were beaten to death at Galloway Ridge retirement home near Chapel Hill sued the facility in 2010. They claimed the facility should have done a background check on the cleaning woman convicted in their killings. The case is still in court.
But employers can be faulted even if they performed background checks, especially if those checks miss something.
The city of Charlotte has paid more than $617,000 to defend and settle lawsuits stemming from former Charlotte-Mecklenburg Police Officer Marcus Jackson. He was arrested and charged with sexually assaulting women during improper traffic stops. CMPD admitted that a pre-employment screening didn't turn up a domestic violence restraining order filed by Jackson's girlfriend, which should have disqualified him.
And Charlotte-Mecklenburg Schools is being sued by a former South Mecklenburg High School student who claims she was sexually victimized by a band director. A proper background check, the lawsuit alleges, would have found a history of inappropriate behavior with students at previous schools. CMS said it conducted a thorough background check.
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