Most corporate security directors and human resource managers realize that a pre-employment screening program is a critical component of a company’s hiring practices. However, many small business owners do not adequately screen their new hires, if they screen at all, often times relying on a quick and cheap name-based check on a web site full of false promises and snappy graphics. They have failed to read the fine print on these web sites. If they did, they would discover that results are not guaranteed and their software program scans only those public records sources that are available online, without offering any verification of accuracy. There are often no allowances made for common names and redacted identifiers in public records.
Many of these so-called national criminal background check web sites aggregate data periodically from public record sources, usually a county court’s indices or a state’s central repository of criminal records, usually a state police agency. Often times they upload these databases at the end of the month or the end of a quarter, meaning you are not getting the most current information from a court. Further adding to the due diligence dilemma is the fact that we are in an era where many state laws have changed to allow former defendants to expunge criminal convictions, including misdemeanors and low-level felonies. What hasn’t changed is that these laws were never funded and the courts are overwhelmed with these requests, adding to further delays in the updating of court records available for retrieval. An employer can be sued in federal court if he or she makes an adverse employment decision based on inaccurate information from an unreliable criminal records database or from a third party vendor who is not up to date on the reporting requirements imposed on background screening companies by local, state and federal law.
Providing a Safe Workplace …
Trace Investigations is an Indiana based Consumer Reporting Agency (CRA), the designation the Federal Trade Commission established for those firms that provide background screening services as a third party vendor to businesses. We have been conducting pre-employment checks since shortly after our company was formed in 1990, but those services saw a fast growth after the horrific terrorist attacks on September 11, 2001. Today we provide screening services for several corporations in Bloomington and around southern Indiana. While background checks are an essential component of a successful human resource policy, how a business responds to a screening report on a questionable candidate has never been more challenging. We routinely see stories in the press about a job seeker who couldn’t get hired because he or she had a misdemeanor conviction over 20 years ago. And the EEOC seems to be dropping the hammer on businesses who don’t reach out to these classes of job seekers. What’s a business owner to do?
First, a business owner has to establish an effective background screening program that supports a strong human resource policy, where all job categories are carefully evaluated to determine the qualifications for a particular job, a policy which recognizes that an old record — say a check deception conviction when an applicant was a young adult – should have no bearing on his or her ability to work an assembly line or drive a company vehicle, for example. But, by the same token, if your screening vendor returns multiple records on convictions for predatory sexual practices, you should carefully consider if that man should be on an assembly line with women. And there’s the prevailing state and federal laws to consider.
Changes in Indiana Law …
In 2014, changes in the state law regarding reporting criminal records in the State of Indiana went into effect. The new restrictions removed our ability to report case dismissals or non-convictions where the final adjudication was less than seven years from the date of screening. Felony charges that were amended to misdemeanors upon dispositions can now only be reported as the adjudicated misdemeanor without any reference to the charging of a felony (notwithstanding a revealing cause number that was not changed). The “Ban the Box” movement around the county – no doubt headed for Indiana — has resulted in new laws that prevent an employer from asking about prior criminal history on an application, and where a background check cannot be conducted until a tentative job offer has been made. What’s a business owner to do?
Give Us a Call …
Of course, we here at Trace Investigations are not attorneys, but we can assist businesses who have questions on developing a pre-employment screening program and we always recommend you review your practices with qualified legal counsel. We periodically review our reporting requirements under all relevant laws, with the assistance of our own employment law counsel. In fact, we have just completed a review and have updated changes in certain procedures and the Notice and Authorization forms (“releases”) we recommend to our clients. These reviews allow us to offer our clients a compliant background screening process and final investigation report on a job applicant. For inquiries from potential new clients, we can offer recommendations on how to implement their screening practices and will provide them with the necessary forms recommended by our employment law consultant.
Give us a call at 800-310-8857; that’s the first thing you should do.