fingerprint.jpgUPDATE BELOW

Some job seekers who thought they had their criminal records sealed or believe arrest records won’t show up in a background check are often in for a rude awakening.

Turns out FBI data bases, and other public and private sources of information, can still turn up past missteps you thought weren’t in the public sphere, said Samuel Miller, a labor law attorney.

“A quarter of U.S. population has some record in FBI data base, and a large number may be situations where someone got fingerprinted or held in jail for a few hours but never got prosecuted,” he said.

Today, the Equal Employment Opportunity Commission is holding a meeting in Washington where it will announce new guidelines for the use of using criminal background checks in employment, and what they propose could help some workers. But the issue of bogus information, or information that was supposed to be out of the public’s eye for ever, may be hard to resolve.

Unscrupulous background search companies don’t always do their due diligence when digging up dirt of prospective employees, and reporting standards vary greatly from state to state, Miller said.

Many job seekers with minor infractions, or offenses in their pasts they thought were gone, opt not to tell hiring managers about their misconduct, but if something turns up during a background check most employers will kick you out of the running just because you lied. No changes in the law will derail this problem, Miller maintained, because companies are legally allowed to fire you or not hire you for dishonesty.

While using arrests records to make employment decisions is illegal in many states, some employers still do so; and yet other are just getting bad information from screening firms that tell them individuals were convicted when they really weren’t, he added.

A report from the National Consumer Law Center found such errors were not uncommon. Here’s a list of the top faulty practices:

• Mismatch the subject of the report with another person;
• Reveal sealed or expunged information;
• Omit information about how the case was disposed or resolved;
• Contain misleading information; and
• Mischaracterize the seriousness of the offense reported.

Many of these errors can be attributed to common practices by background screening companies, such as:

• Obtaining information through purchase of bulk records, but then failing to rou- tinely update the database;
• Failing to verify information obtained through subcontractors and other faulty sources;
• Utilizing unsophisticated matching criteria; • Failing to utilize all available information to prevent a false positive match; and
• Lack of understanding about state specific criminal justice procedures.

It’s a Catch 22 for employees today because 73 percent of employers do criminal background checks on all job candidates no matter what the position, according to the Society for Human Resource Management.

UPDATE:

Here’s a link to my story that came out after the EEOC released its new guidelines; and here’s a great overview on what the updated provisions mean by Barry Hartstein, an attorney with Littler Mendelson, for one of the nation’s top employment law firms:

The EEOC issued updated guidance on the use of arrest and conviction records in hiring and employment decisions. While the guidance restated certain long held rules in guiding employer conduct, a critical new focus is underscoring the importance of an “individualized assessment” before disqualifying an applicant based on a criminal conviction record.

Much of the guidance involves citation to statistics, studies and commentary by various experts to support the view that reliance on criminal history records has a disproportionate impact on African Americans and Hispanics. The guidance further highlighted that studies have found that various criminal record databases that may be relied on by employers “include incomplete criminal records” (i.e. arrest, but record may fail to indicate that record was sealed and/or expunged) or records that are inaccurate.

The guidance underscored that treating individuals in a protected class (e.g. African American, Hispanic) differently based on an employer’s reliance on a criminal record is unlawful and particularly focused on concerns of “stereotyped thinking” and rejecting an applicant “based on racial or ethnic stereotypes about criminality—rather than qualifications and suitability for a position.”

While Federal law does not protect those with a criminal record from being discriminated against in the workplace, unlawful discrimination also may occur if an employer’s neutral policy has the effect of disproportionately screening out individuals based on race or national origin. The EEOC’s guidance used the example of a policy that has a blanket exclusion on hiring an individual with a criminal record, which it views as being unlawful.

The EEOC recommends that employers not ask about convictions on job applications and “if an when they make such inquiries, the inquiries be limited to convictions that are job related for the position in question and consistent with business necessity.” Assuming a policy has a disparate impact, an employer can continue to rely on the three- factor test included in the EEOC’s guidance for the past 25 years by considering: (1) the nature and gravity of the offense of conduct; (2) the time that has passed since the offense and/or completion of the sentence; and (3) the nature of the job held or sought. The EEOC’s new guidance adds some “flesh to the bones” in describing how these factors should be used, but most importantly takes the position, that an individualized assessment should be made before disqualifying an individual for employment based on past criminal conduct.

The EEOC has developed a three-part test in dealing with individualized assessment: (1) inform the applicant that he or she may be excluded based on the past criminal conduct; (2) provide an opportunity to the individual to establish that the exclusion should not apply; and (3) consider whether the individual assessment shows that the policy should not be applied to the applicant. The EEOC also provides a laundry list of other individualized factors to consider.

The EEOC acknowledged, “Title VII… does not necessarily require individualize assessment in all cases. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.”

The EEOC continues to take a very hard line in consideration of arrest records, taking the view that an arrest record standing alone may not be used to deny an employment opportunity, and the employer must examine the conduct underlying the arrest in making any employment decision.

The guidance does provide some leeway in employment decisions in disqualifying an applicant based on reliance on other Federal law or Federal licensing requirements. State laws, on the other hand, are preempted to the extent that they violate Title VII, and an employer cannot defend its actions in such circumstances.

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