More than 90% of employers conduct background checks on job applicants at some point in the hiring process. A failure to do so today could lead to a negligent hiring lawsuit tomorrow. But employers that fail to pay attention to recent trends involving criminal history questions of job applicants could be facing other kinds of risks.
On the latest XpertHR Presents podcast, Fisher & Phillips employment attorney Rosemary Gousman addresses the marked increase in “ban the box” laws in the US, which prohibit employers from asking criminal background questions on job applications. Gousman is the Regional Managing Partner for the law firm’s New Jersey office.
Some of these “ban the box” laws restrict criminal history inquiries until after a first interview has taken place. Six states have enacted laws that apply to private employers, including four in the last 15 months. Seven others, including California and Maryland, have “ban the box” measures that apply to public employers. More than 60 cities and localities have passed similar laws as well. Gousman cautions that multistate employers must stay aware of these developments.
At the same time, she notes that the Equal Employment Opportunity Commission (EEOC) has not banned background checks or the use of criminal records by employers. Instead, the EEOC has suggested restrictions on ways in which these records are used.
“What employers do is they look at the application, they see there is a conviction and they just move on from that candidate,” says Gousman, who points out that “ban the box” laws are intended to give rehabilitated candidates a chance to get their foot in the door and explain their past.
The New Jersey employment attorney also offers a few other tips for employers:
•Don’t ask about an arrest that did not lead to a conviction (unless it is pending);.
• Conduct individualized assessments of applicants;
• Document your decisions and go through the criteria established by the EEOC; and
• Comply with the Fair Credit Reporting Act.
Gousman concludes by warning employers to steer clear of credit checks except for a very limited range of jobs such as financial positions. She asserts that these types of checks can have a disparate impact on minorities and women who generally tend to have lower credit ratings. In all, 10 states have restricted employers’ use of credit reports for employment purposes.
For more on the latest developments affecting employer background checks plus other recommendations, give this podcast a listen.
If you would like to share your thoughts on the biggest challenge involving background checks today, please get in touch by leaving a comment below or via Twitter @David Weisenfeld.
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