Employment Background Checks: EEOC New Strategic Plan

employment background checksThe U.S. Equal Employment Opportunity Commission (EEOC) recently announced their 2012-2016 strategic plan to focus more on “systematic litigation”.     The plan passed by a 4-1 vote with the lone dissenter voicing concerns with the heavy focus on litigation instead of education and outreach. The strategic plan is about as clear as mud.   However, the EEOC focus appears to be on cases that have a “broad impact of an industry, occupation, business or geographic area.”

Naturally, as I read through the plan, I was wondering how this will impact employment background checks?

I think it is just a continuation of a course the EEOC has been traveling for quite some time.  They made it clear this past July during their public meeting on the use of criminal records that they have great concerns with the proliferation of criminal background checks and how that impacts ex-offenders.

Unfortunately, the July meeting was a little lopsided as the only voices heard were those of organizations that work with recently released prisoners.  Clearly absent from the meeting was the voice of victims of crime and employers who have been impacted by violence in the workplace.

Do we really want to elevate ex-offenders to a protected class status?

Ok, before the barrage of anonymous comments (and I do find it hypocritical to reply anonymously if you are so passionate about your position) I want to say that I am 1 zillion percent in favor of quality programs that help prisoners achieve the status of ex-offenders.  Really.  I have served on prison ministries and our churches homeless ministry where I see the impact of a life of addictions, crime and unemployment.

However, nearly half of all prisoners released each year will be back in prison with 3 years.  This has not changed over the past 15 years.

Obviously the criminal justice system does a poor job of rehabilitation.  And many of the programs designed to help prisoners re-enter society have had little success.

Let’s be honest, if it was so simple as to pinpoint one thing as the cause, then we could convert all of our recently released prisoners to ex-offender status.  Unfortunately for us and future victims, more than half of prisoners released each year are not ex-offenders, they are continued offenders.

Does gainful employment play a role in the helping an offender transition back into society?  Absolutely!  And I don’t think you would find many dissenters.

But I also know that the increase use of employment background checks is not the root cause of ex-offender recidivism.  I am not drinking the Kool Aid.

I have had a front row seat and witnessed the death and destruction of violent offenders over the past 20 years.  And for more than 20 years, the FBI behaviorists have found that the best indicator for future violence is a past history of violence.

So the argument that the widespread use of criminal record checks has had a disparate impact on ex-offenders is not grounded in research.  There has been little movement in recidivism rates in the past 15 years.  Yet the number of employers conducting criminal background checks during this same period has more than doubled.  So if the employment argument were true, should we not have seen an explosion in recidivism?

Dr. Samenow and Dr. Yochelson have researched criminal offenders for more than 30 years and developed programs to challenge and change the thinking errors that are common with offenders.  The following, according to Samenow and Yochelson, are common to all criminals:

  • The criminal is very fearful;
  • The criminal must cut off both internal and external deterrents in order to commit crime;
  • The criminal is a predator who pursues power and control;
  • The criminal demands to be identified as the “unique number one person” in all that he does, having never learned to fully function independent of others;
  • The criminal feels “put down” and becomes angry when he does not get his own way, making him more relentless in pursuit of his goals using stealth or force to accomplish them; and,
  • Except in the planning of a crime, the criminal fails to think long range

Samenow and Yochelson’s theory of thinking errors asserts that employment is used by the criminal to combat feelings of worthlessness by making him feel important.

So where does that leave us?  We have to understand that criminal behavior is extremely complex and cannot be reversed by simple, quick-fix policies such as limiting criminal background checks.

As employers, we also have to understand where the EEOC is going.  The recent $3.1 million Pepsi settlement is a great prologue.

We, as employers, also have a responsibility to use criminal background screening correctly.  It is critically important for us to review our policies and make sure we do not have “zero tolerance” criminal record policies.  We should follow this guide:

  • What is the nature of the crime?
  • How long ago was the crime committed?
  • How does the crime impact the employment position?

This is such a “hot button” issue.  Let me know your thoughts on balancing protecting your organization and protecting yourself from EEOC claims.

Update From EEOC on Use of a Criminal Record Check

criminal record checkWell, if you have you been holding your breath, waiting on a ruling from the July 26, 2011 EEOC meeting on employers use of arrest and conviction records, you can exhale.  No big surprises. Honestly, there were no decisions made last week.  The meeting served as a platform to release a statement as opposed to a formal discussion.

There was a parade of one-sided testimonies.  Primarily programs working with recently released prisoners and attorneys advocating more limitations on the use of a criminal record check for employment purposes.

Clearly absent from the meeting was testimony from employers who have been impacted by violence in the workplace.  We did not hear from employers who have settled negligent hiring claims because they had not done enough pre-employment screening.

Yes, there was plenty of discussion about cheap background checks.  The FBI’s criminal database came under fire as it was estimated that it contained fewer than 50% of all criminal records.

It is ironic that the FBI database would be the subject of discussion since it is the same federal government that year after year passes laws requiring industries to use this database for employment screening with no requirements that the information be verified.

Private companies cannot access the FBI database without federal and state legislation.

Surprisingly, there was little mention of the Fair Credit Reporting Act and the protections it provides to consumers. How it requires background screening firms to validate information and employers to follow a two-step process when taking adverse action so an applicant can see what is being used against them.

What I did hear was that the proliferation of criminal records checks is to blame for high offender recidivism rates.  We have just gone through one of the worst economic times in recent history and honest, law abiding citizens did not covert to a life of criminality in high numbers because they were laid off or displaced.

Where does personal responsibility and good decision making fit into this?  Dr. Yochelson’s and Dr. Samenow’s groundbreaking research on offender thinking errors is right on and has been used successfully to work with offenders.

They do not mention unemployment on their list.

Offenders first have to change the way they think.

The reality is study after study on offender recidivism rates in the U.S over the past 25 years has found the same thing:  nearly half of all offenders were back in prison within three years (U.S. Department of Justice BJS study ).

Studies on sex offenders have found as many as 1/3 are re-arrested for another sexual crime.  How does that correlate with feeding their family or unemployment?

It doesn’t.  It is a crime of power and control.  And study after study indicates there is little hope in changing the behavior of a sex offender.

FBI behaviorists have proven for years that the best indicator for future violence is a past history of violence.  Notice they did not say that the best indicator for future violence is not finding a job.

Yet, you want me to believe that an employer’s use of a criminal record check is the central stumbling block to a life of personal responsibility?  I don’t buy it.

Oddly enough recidivism rates have not gone up over the past 15 years.  They have actually remained about the same.  However, pre-employment criminal background screening has exploded during this same time period.

It is not a yin and yang.

Now, let me say from years and years of research, I get how critical a job is to ex-offenders.  It is an important piece of a large pie that starts with quality programming while incarcerated.

There is a right job for everybody.  There are also jobs that will be impacted by bad decisions we make.

I have trained with professionals who work with offenders and have studied Yochelson’s and Samenow’s Thinking Errors.  I believe in the program.

I have spent 20 years working to end violence and this does include working with perpetrators to change their ways.  That is code for changing the way they think and their belief systems.

However, the EEOC needs to understand that we do not have to restrict criminal background screening to make ex-offenders successful.  We can have our cake and eat it too.  Comprehensive criminal background screening and ex-offender re-entry programs can work hand in hand.

Our policies should NEVER deny employment simply because somebody has a criminal record.    We have to use common sense and sound policies to determine:

  • The nature of the crime committed;
  • How long ago it was committed;
  • And how that crime impacts the employment position.

We can do our part by insuring this 3-pronged approach is applied to each hiring decision.  The federal government can do their part by offering quality programming for offenders.  We need more re-entry programs that “integrate” an offender back into society and doesn’t just drop them off on a street corner.  The Indiana Department of Corrections partners with employers and provides a 2 year program to help a select group of offenders successfully re-integrate into society.

There are no simple fixes to offender re-entry.  Look at the past 30 years.

Ok, I admit I probably should have had a cup of java before I got on my soap box this morning.  Sorry.  Well, not really.

EEOC & Employment Background Checks

employment background checksHow does the EEOC view an employer’s use of criminal records for employment background checks?  Well, let me see if I can take 20 years of legalese and put it into plain language. Not an easy task.  And keep in mind that this may all change again on July 26, 2011 when the EEOC Full Commission meets to discuss the use of criminal records for employment screening.  We will be monitoring this meeting closely.

As you know, the EEOC enforces, among other things, Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination on the basis of race, color, religion, sex or national origin.

Ok, so what does that have to do with criminal records?  The EEOC has always frowned on the practice of denying employment based solely on a criminal conviction.  Why?  Because certain minorities are “convicted at a rate disproportionately greater than their representation in the population.”

To stay in step with the EEOC your first step is to justify your business necessity through a 3 step process:

  1. What is the nature and gravity of the crime?
  2. How much time has passed since the conviction or completion of the sentence; and
  3. What is the position being sought or held?

The EEOC does not prohibit the use of pre-employment inquiries about an applicant’s criminal history.  However, it does prohibit the use of discrimination:

  • Disparate Treatment:  Intentionally deny an employment position because of the race of the applicant. E.g.  A minority applicant is denied employment but a white applicant is hired with the same criminal record.
  • Disparate Impact:  The blanket use of criminal records disproportionately excludes certain minorities.

So where does that leave us?

  1. We should have policies in place that are founded on the EEOC’s business necessity requirements.
  2. A criminal record alone should not cause us to deny employment.  The 3 prong approach should be applied to all polices and hiring decisions.

The bottom line is the use of criminal records is a critical component of employment background checks. The key is to create sound policies based on your business necessities.   Articulate.  Articulate.  Articulate.

Contact us today if you need assistance in complying with the EEOC.

Indiana Background Checks: Government Employers, Contractors Must Use E-Verify

indiana background checksSay what?  Another requirement for Indiana background checks? Indiana Senate Enrolled Act 590 ( IC 22-5-1.7) is effective July 1, 2011 and requires the following to participate in E-Verify:

  • All state agencies
  • Employers who have “public contracts for services”
    • With a state agency; or
    • Receive grants exceeding $1000 from a state agency

This applies to all employees hired AFTER June 30, 2011 or grants entered into or renewed after June 30, 2011.

Step 1 is to determine if this applies to you.  Pretty straightforward if you are a state employer or a state contractor.  What about Indiana school corporations?

IASBO has declared that the law DOES apply to Indiana School Corporations as they are designated as “political subdivisions” under IC 36-1-2-13.

Step 2 is to understand what E-Verify means.  To put it simply E-Verify is a federal program that determines an employee’s legal right to work in the U.S.

Step 3 is understanding the penalties for non-compliance:

  • State can sue employers who do not use E-Verify to recover unemployment insurance benefits paid to workers on or after 07/01/2011 if the employer knew the employee was not eligible to work in the U.S.
  • Will not enter into or renew contracts with signed affidavit declaring participating in E-Verify.
  • Employers are allowed 30 days to remedy the violation.
  • After 30 days, a violation will result in termination of contract and possible damages (if assigning contract leads to higher costs).

Step 4 is compliance.   The federal government site is very time consuming and labor intensive.

So, Safe Hiring Solutions has created an integration that allows employers to file I-9’s electronically and conduct an E-Verify search.  Contact us today for more information on E-Verify and Indiana background checks.