This really is the million dollar question. It is a lot like the presidential primary debates. The answer is dependent on who you ask. So let’s look at the competing perspectives on how far back should background checks go?
The EEOC has made it clear that they believe the proliferation of criminal record checks is having an adverse impact on ex-offenders. Is this true?
Can we ask if ex-offenders have an adverse impact on innocent victims? Or is this only a discussion from an offender’s perspective? The EEOC meeting on the use of criminal records last summer was heavily tilted toward those working with ex-offenders.
The reality is the EEOC has made this a high priority in their 2012-16 strategic plan. Agree or disagree, it doesn’t matter. They are knocking on the doors of employers who have zero tolerance policies for criminal records or who use non-conviction records to disqualify candidates.
Or how about the handful of states and municipalities that have passed “ban-the-box” legislation? This is even further than the EEOC has gone (to date). “Ban-the-box” simply means employers can no longer ask about criminal histories on an application. It does not eliminate the use of criminal background checks but delays asking about this information until the interview phase.
A handful of states have restrictions on the reporting of criminal records. Most of these states only restrict if the salary is less than $20-25K. A few have absolute time restrictions to 7 years.
I have even had quite a few sex offenders complaining that I am trying to keep them from getting a job. Partially true. I am trying to keep them from getting a job that would provide them an opportunity to rape and abuse innocent victims.
So I am really not opposed at all to a sex offender having a job. My mission is to make sure I provide the information to our clients so they make an informed decision.
There is no denying the tide has shifted. We are seeing a growing movement (or backlash) against the use of criminal records for employment and how far back should background checks go.
As far as you legally can is the best practice. Clients working with vulnerable populations such as a school district will have specific laws that exclude violent candidates no matter how long ago they committed the crime.
So screening firms should provide deep searches, filtering them through state and federal laws. This allows employers to make prudent decisions based on their policies.
Unfortunately, the background screening industry has been a huge contributor to limited and low quality background checks. Yes, many years ago the federal Fair Credit Reporting Act used to restrict all criminal records for employment purposes to 7 years.
However, the FCRA was amended in the late 1990’s and removed this 7 year limitation for convictions. But this is still the quasi standard for the industry.
The FCRA does restrict reporting of non-convictions to 7 years, unless the salary of the position exceeds $75,000. Don’t ask me where they came up with this number.
Truthfully, a criminal background check should only be limited by two things:
- How far back the court records go; and/or
- Federal or state law restrictions for reporting criminal convictions for employment purposes.
Imposing broad restrictions on reporting criminal convictions will increase the risk of a bad hire, innocent victims being harmed and potential for negligent hiring lawsuits. We know that research on ex-offenders over the past 15 years has shown that more than ½ are back in prison within 3 years. Corrections professionals have tried everything to reduce the recidivism of ex-offenders but nothing has proved fruitful.
So it seems that the current movement believes that if an ex-offender has gainful employment then his ability to make the correct choices will also increase. I don’t buy it. Offenders have common thinking errors and unless these change….and this requires the offender making a personal choice and decision to change….then the cycle will continue.
A quality background screening partner will:
- Not limit a search to 7 years unless required by law.
- Provide education on importance of a 3 pronged policy on the use of criminal records:
- What is the nature of the crime?
- How long ago was the crime committed?
- How does the crime impact the employment position?
Would you like the security and confidence to know that your background screening firm is providing all the criminal records legally permissible?