This is the first time I have published two articles on the same topic back to back. However, I think there are still so many employee background check and life lessons to learn from the Penn State sex abuse tragedy.
And, quite honestly, there may be many, many articles over the coming months. Why? Because this story will continue to snow ball.
There is new information coming out daily. At times hourly.
As a matter of fact, my wife and I were discussing Jerry Sandusky at lunch. We both agreed that the number of victims will probably be in the hundreds.
Luckily for Sandusky and Penn State, we may never know the exact number. Many of the victims, grown men today, will be too ashamed, or embarrassed to admit what happened to them.
And let’s be frank, how many of them are in a position to report what happened? Sexual violence leaves a trail of destroyed lives.
How many of these troubled and vulnerable victims turned to alcohol or drugs to numb the pain? How many of these young boys turned to a life of sexual promiscuity to compensate for the abuse? Or how many of the victims became a new generation of abusers, turning their anger on other innocent victims to regain a sense of power and control over their lives?
The fallout from decades of abuse from this man will plague generations. A never ending cycle of violence spreading one victim at a time.
All last week, we watched video of an elderly Jerry Sandusky being escorted to a police car in handcuffs. But this morning I saw an interview with Sandusky when he was much younger.
I noticed a real twinkle in his eye when talking about kids, building trust and The Second Mile organization he founded to work with (or exploit) troubled youth. I think it is important to share the interview. I want you to understand what you are up against. How cunning, polished and educated child abusers can be.
Why? Because I have said over and over again that those who harm kids always seek access to them. I also want you to look at this man who has allegedly done absolutely awful, sadistic things to children.
He doesn’t look scary. Quite the opposite. He is very articulate, well dressed and powerful at the time of the interview.
Or listen to this 1 minute interview of Sandusky conducted by Bob Costas. Listen to his admissions. Listen as Costas asks him direct questions about his attraction to young boys. Sandusky’s response? He repeats the question twice before answering. Why? Because he is thinking and repeating the question buys him some time.
So where does that leave us? First, the employee background check lesson for organizations serving children is those who harm kids will go to the ends of the earth to gain access to them. Secondly, a limited background screening program will not hold up against the Jerry Sanduskies of the world.
And third, listen closely Penn State, when things are disclosed, act quickly, legally and prudently. Take a lesson from law enforcement agencies. When an officer is involved in a use-of-force incident, the first thing that happens is the offer is placed on administrative duty until everything is reviewed. Removed from official duties and contact with the public. No harm, no foul.
Too often I think we focus on a criminal background check as the stand-alone component for a quality employment background check. The truth is, an effective employment background screening program begins with a great application.
Catch that? I said a great application, not a decent one. I have seen thousands of decent applications. Typically they are the results of a legal review where an attorney is focused on the risk mitigation of asking the wrong questions that might violate the ADA, EEOC , FCRA and the lists goes on.
Where is the risk mitigation of making a bad hire because we are not asking enough of the right questions? If it is an employee who uses violence, we could be talking millions. However, if it is just a bad hire, we could be out $30,000 or more. I have seen estimates as high as 2 or 3 times the employee’s salary.
So we absolutely need to make sure our applications are legally compliant but we also need to make sure we are asking all the right questions. More information is always better.
Make it absolutely clear that your organization is concerned with workplace violence, employee theft and creating a drug-free workplace and that you conduct comprehensive background checks on all applicants for employment. This should be prominent on the application and may provide a deterrent for some applicants with an unsuitable background.
#2 Detail, Detail, Detail
If your application is one page, you are in trouble. I just filled out an application as part of a process to become a volunteer board member for an agency serving homeless youth. It took me over an hour and was close to 10 pages. There is no way you can collect enough detail on an applicant in 1 or 2 pages.
#3 FCRA Disclosure & Authorization Forms Separate
The Federal Fair Credit Reporting Actrequires that your Disclosure & Authorization Form be a separate, stand-alone document. Why? The FCRA wants applicants to know exactly what they are signing. An authorization buried in an application may not provide an applicant a clear understanding of what they are authorizing.
#4 Ask Specific Questions About Criminal Convictions and Pending Criminal Cases
First, it is important to let the applicant know that they should not disclose a criminal record which has been sealed or expunged by the court. Furthermore, we should let them know that no applicant will be denied employment solely on the grounds they have been charged, committed or convicted (pleaded guilty or no contest) to a crime. Here is where you ask specific questions:
Have you ever, under your name or another name, been convicted of (or pleaded guilty or no contest to) a felony or misdemeanor?
Have you ever, under your name or another name, been convicted of a crime which resulted in your being in prison and/or jail and released from prison and/or jail or paroled?
Are you currently under arrest, or released on bond on your own recognizance, pending trial for a criminal offense?
Have you used illegal drugs in the last six months?
Do you take any illegal drugs or medications which have not been prescribed for you?
Have you ever been convicted of driving under the influence (DUI)?
Do you use alcohol to the extent that it would impair your job performance?
#5 Have the Applicant Sign the Application
Require the applicant to sign the application and by signing they are declaring they completed the application, that the information provided is true and correct and that they understand that any false information or significant omissions may disqualify them from consideration for employment AND may be grounds for dismissal from employment if discovered at a later date. And that any job offer is conditional on successfully completing a background check.
How 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.
To stay in step with the EEOC your first step is to justify your business necessity through a 3 step process:
What is the nature and gravity of the crime?
How much time has passed since the conviction or completion of the sentence; and
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?
We should have policies in place that are founded on the EEOC’s business necessity requirements.
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.