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Background checks: A trend you’ll want to watch

by August 12, 2010 7 Comments

Looks like there’s a new issue to add to the list of HR headaches you’re keeping an eye on: background checks — both criminal and credit.

Two states have recently passed laws restricting how employers can use the information they dig up on job applicants’ backgrounds. Other states are considering similar legislation.

Finally, the EEOC’s brought legal action against employers — including the U.S. Census Bureau — which, the agency alleges, misused background check information when making hiring decisions.

Massachusetts, Illinois enact new laws

Earlier this month, the Commonwealth of Massachusetts became the second state (Hawaii was first) to ban both public and private employers from requesting criminal record information on initial job applications.

The legislation does permit employers to inquire about an individual’s criminal history on a job application if  federal or state law bars a person from a certain job because of a specific prior offense.

This week, Illinois passed the Employee Credit Privacy Act, which prohibits employers from inquiring about or refusing to hire, discharge or otherwise discriminate against workers on the basis of their credit reports.

In 2009, Minnesota enacted a law barring public employers from asking a job applicant about criminal records or conducting a criminal record check until after an applicant has been selected for an interview. New Mexico and Connecticut followed suit in 2010.

Currently, three other states are considering similar bills: Nebraska, New Jersey and Rhode Island.

Feds are busy, too

The EEOC recently filed a federal lawsuit against the U.S. Census Bureau, claiming the Bureau illegally screened out applicants with old arrests  for minor or unconvicted offenses that likely wouldn’t have disqualified the candidates for other jobs — including many positions in the federal government.

And last fall, the EEOC filed suit against Dallas-based Freeman Companies, alleging that the firm used credit history and criminal records to discriminate against against blacks, Hispanics and males.

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  • RandiG

    We all discriminate all the time, sometimes deliberately and other times unintentionally — our prejudices are so deeply ingrained that we frequently are not even cognizant of them. And I’m not talking just about race or gender or age — we discriminate based on every conceivable factor, from someone’s name to the shape of his nose or the color of her hair. Background checks are just another method of legal discrimination.

  • RandiG

    Should have added that I applaud this legislation — it’s about time.

  • Darwin

    It amazes me that the US military set the standard by saying that you can trust a person based on their credit history and background (Security Clearance), yet business are not allowed to. In what reality do these people live? Do people make mistakes, most definitely, but guaranteed, that nobody has been disqualified for a position over a mistake. It’s a pattern of behavior that we are looking for.

  • http://montgomeryaviation.net HR Don

    Well said “Darwin Says”!!! I agree.

  • HR Kansas

    In 2009, Minnesota enacted a law barring public employers from asking a job applicant about criminal records or conducting a criminal record check until after an applicant has been selected for an interview. New Mexico and Connecticut followed suit in 2010.

    ================================================================

    I about flipped until I saw “conducting a criminal record check until after an applicant has been selected for an interview”. Who wastes money on a criminal checks on someone they haven’t even considered hiring?

    Our company doesn’t consider small crimes such as drug possession or battery big of deal, the burglars and petty thieves are not considered. To many small tools to be stolen and listed on Craigs List. The biggest issue is the workman’s comp claims history.

  • Stacy

    Well said RANDIG! We are all very guilty of the “Silent Interview” in our personal and professional lives. I have found that most of the time, I am dead wrong about my perception. This legislation is much needed. Some companies don’t consider relevance or the fact that these infractions may have happened over 5 or more years ago.

  • http://montgomeryaviation.net HR Indiana

    Companies, in general, seem to always be “in a rush”. We tend to “get the horse before the cart”. Doing a background check and credit check BEFORE an interview does nothing but eliminate them from and the time for an interview. Is that “fair” to the applicant. My thought is NO. We have to accept the resume and job application as is and decide if we want to interview the applicant. I know it sounds like a waste of time not to do these checks but on the other side of the fence it can prevent a person from an interview and a possible job. What the government is saying as I see it, is we cant say no to an applicant based soley on a credit check and background check PRIOR to an interview. If, after the interview, any one or both of these checks comes back questionable, then the job being applied for then becomes an issue. If a person applies for a company treasurer job and was convicted of a felony dealing with money theft, and has a bad credit history, would you hire that person? If this was known before the interview would you schedule an interview with that person? Probably not.