Background Checks: Legal, Moral?
Contractors Discuss If, Why They Examine a Prospect’s History Before Hiring
In today’s world, most job applicants expect to sign some sort of disclosure that allows a potential employer to run a background and/or credit check before an employment offer is made. In fact, 69 percent of organizations reported they conduct criminal background checks on all job candidates, according to a 2012 Society for Human Resource Management (SHRM) survey. However, conducting those blanket background checks could land employers in legal hot water, so to speak.
The U.S. Equal Employment Opportunity Commission (EEOC) claims general exclusion of job applicants based on criminal background checks violates Title VII of the Civil Rights Act, and it has taken legal action against companies for doing so, most recently against Dollar General and BMW Mfg. Co.
In the HVACR industry, many contracting companies consider background checks a requirement as their employees spend a significant amount of time in customers’ homes. Mary Jean Anderson, owner, Anderson Plumbing, Heating, and Air, El Cajon, California, takes customer protection and safety very seriously and has one of the most stringent background checks in the industry.
According to Anderson, her background check includes drug testing, a personality profile, a criminal background check, and a pedophile registry examination.
“We use a verified social security number and trace throughout the entire country,” she said.
“We do a complete state-to-state scan with a reputable firm that guarantees its results. You can get these really crummy background checks on the Internet that are not thorough and do not cover all of the U.S. Our system goes back 10 years, while some go back only seven.”
Anderson said she denies employment based on background checks all the time.
“The exception is someone with a drug, alcohol, or related minor offense that is 10 years old. We’ll consider such an applicant if the person has proven to be an upstanding citizen and has proof of living a substance-free life. If we hire that person, he or she is subject to random drug tests at his or her expense, at any time. They are surprise tests. The employee must agree to that during his or her entire employment with us. We also pull records from the Department of Motor Vehicles (DMV) that indicates any driving infractions. These help us identify a DUI [driving under the influence offense] immediately.”
According to the SHRM survey, the top two reasons employers decide not to extend job offers are violent felonies (96 percent) and nonviolent felonies (74 percent). Additionally, about 58 percent of employers allow job candidates to explain the results of their criminal background checks before the decision to hire or not to hire is made.
Bud Anderson Heating and Cooling, Lowell, Arkansas, advertises that it conducts employee background checks everywhere, including on the side of its vehicles. According to Tim Paetz, general manager and co-owner, a background check was performed on every new hire within the company, including himself.
“It is very important in the service industry that we put people in homes that our team and clients can trust,” Paetz said. “I would not want to live with the fact that our lack of investigation could hurt someone or put their property in danger.”
Bud Anderson Heating and Cooling’s comprehensive background check includes a motor vehicle report and a full criminal enquiry. “If we find something that is not clear, we send a private investigator down to pull records and investigate. This has helped in domestic cases and things that people have done when they were very young. Repeat offenders and people with violent crimes or thefts can’t be hired. That’s why we have a real hard time finding good people as 60 percent get filtered out right away. Clients pay us for security and peace of mind.”
The company also does drug screening, according to Paetz, which accounts for about six out of 10 potential employees removed. Background screening accounts for about three out of 10, Paetz said.
On the other side of the fence is Dirk Roper, owner, Fallon Heating and Air Conditioning LLC, Carson City, Nevada. Roper said that while he uses background checks during the hiring process, he’s never denied employment because of one. However, that could be because the worst he’s seen has been marijuana and drunken driving violations that occured several years ago.
“By disclosing we do background checks, we may have kept some people from continuing the application process with us,” Roper said.
“Would I deny someone? I couldn’t hire a murderer, rapist, or pedophile. Service techs go into customers’ homes. I can’t endanger a customer. Someone who has misbehaved and not hurt someone else, who seems genuinely committed to keeping clean, could have a second chance with me. That second chance may be what helps him or her continue on the chosen new path.”
According to the EEOC, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination. Robin Symons, co-managing partner, Gordon & Rees LLP, Miami, spoke during ACCA’s Service Managers Forum in Charlotte, North Carolina, about several human resources issues, including hiring, firing, and the use of background checks.
“I run an office, so I manage employees just as ACCA members do,” Symons said. “My presentation touched on employment issues that many small business owners face and offered some practical tips. We had great audience engagement and drilled down in a series of questions from the silence about real-time issues ranging from chronic workers compensation claims to hiring and firing.”
Symons’ presentation included tips such as establishing nondiscriminatory policies and practices that are job related and necessary to the operation of the business and building a handbook. The best advice Symons had to offer business owners was to follow EEOC expectations and not use blanket background checks.
“Rather, they [background checks] should have some relation to the job, and, if used, the results should be weighed against the job features.”
Publication date: 12/8/2014