background checks Archives

September 3, 2019July 12, 2024

Why ‘Ban the Box’ Doesn’t Work for Employers or Employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

Last month, the 5th Circuit Court of Appeals upheld an injunction which blocked the EEOC’s guidance on criminal background checks is unlawful, and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which in that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because African-Americans and Hispanics are incarcerated at a rate significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly labeled after the “box” applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted these laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated in the Ear Hustle clip above, all that “ban the box” accomplishes is moving the criminal background check from the application stage to the formal background check stage. Employers that are pre-disposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes; they are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for Caucasians, while making them worse for African-Americans and Hispanics.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

1. Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.
2. Tax credits to incentivize businesses to hire these felons.
3. A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., we still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).

We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support. If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.

July 29, 2019July 15, 2019

Criminal Past Less a Predictor for Workplace Futures

At Nutrition Solutions, most employees are formerly convicted felons.

Not exactly the type of employee one would expect to find at a trendy lifestyle meal preparation company. But then again, founder and CEO Chris Cavallini was arrested 17 times before he was 18 years old.

Now leading a $10 million company, Cavallini gives others opportunities to move forward despite pasts including felony convictions, homelessness or substance abuses.

Still, Cavallini won’t just hire any convicted felon who applies for a job.

“We look for how has that person has taken responsibility for what has happened in their past and if they are ready to do whatever it is they have to do for it as long as they need to do it to create a better life for themselves and their families,” he said.

With unemployment at historic lows and a large amount of the workforce gravitating toward sharing economy jobs, there are currently more job openings than job seekers, noted Marco Piovesan, CEO of InfoMart, a global background screening company.

That leads employers to consider hiring nontraditional candidates such as ex-offenders, who demonstrate lower turnover rates than their peers, he added.

Some 75 million Americans — about 1 in 3 adults — have a criminal record. According to the Society for Human Resource Management, nearly 700,000 people are released yearly from prison with 75 percent remaining unemployed for a year.

With employers desperately seeking to fill vacant positions, a criminal past may not tarnish a job candidate like it once did. Several initiatives from HR’s leading association as well as the current administration are closing the gap between fulfilling a prison sentence and finding fulfillment in gainful employment.

The Getting Talent Back to Work initiative led by SHRM and Koch Industries to end noninclusive hiring practices rolled out after President Donald Trump signed the First Step Act into law in December 2018.

SHRM’s initiative has led hundreds of individuals and companies to sign a pledge to seriously consider qualified formerly incarcerated people for jobs.

The initiative includes a toolkit providing employers guidance in compliance issues, background checks, interviewing and assessment, screening, risk analysis, insurance, negligent hiring, hiring incentives and understanding criminal background report language.

Nearly 75 million Americans — about 1 in 3 adults — have a criminal record.

While significant uncertainty about hiring workers with criminal records exists among some senior executives, only 14 percent of HR professionals and 26 percent of managers are unwilling to work with or hire someone with a criminal conviction, according to a SHRM and Charles Koch Institute study.

“As employers, we acknowledge people make mistakes in life, come back from it and want to do better. They need to be able to have a livelihood,” said Dale Pazdra, a Barry University adjunct HR professor and Coral Springs, Florida, HR director.

“Be open-minded, but protect yourself and your company by deploying the same mitigation strategies you would with a more traditional hire and weigh the gravity of the offense against the nature of the job,” said Piovesan.

Some ex-offenders commit a repeat offense and are reincarcerated despite immediate employment upon release, noted Tammy Cohen, InfoMart founder and chief visionary officer.

Compliant background checks ensure specific types of ex-offenders are restricted from working in positions catering to vulnerable populations, Cohen added.

It also ensures fairness in hiring decisions, she said, adding, “the EEOC is against the use of bright-line rules such as refusing to hire anyone with a criminal conviction and instead encourages employers to complete individualized assessments.”

EEOC guidelines encourage recency and relevancy related to offenses, Pazdra said. A “whole person” approach includes work history, education, references, and physical requirements to ensure a good hire, he added.

Cavallini said for formerly incarcerated felons to be successful after release, they must reconfigure their belief system, priorities, values and social circle.

His company’s second in command spent time in solitary confinement.

“If they can make it through that, they can make it through any workplace adversity,” Cavallini said.

At Nutrition Solutions, all employees must do two weekly boot camp style workouts with a personal trainer to build discipline and channel aggression, and also write reports on how leadership lessons taught in the book “Extreme Ownership” — written by two U.S. Navy SEAL veterans — apply in their lives.

“We’re paying our team to do things to make them smarter, more efficient, effective, mentally resilient, disciplined, and more valuable to the company,” said Cavallini. “They’re willing to do whatever it takes because they don’t want to go back to that dark place in life.”

July 10, 2019June 29, 2023

Why Are Employers Testing Job Applicants for Prescription Medications?

During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination.

The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.

The applicant sues, claiming disability discrimination.

Who wins?

(a) The employer, because the ADA permits pre-employment medical examinations and drug screening, and further because there exists a nexus between the applicant ’s underlying mental impairment (anxiety) and her fitness to work at a mental health facility.

(b) The employer, because the ADA only protects physical and mental impairments, not drugs used to treat them.

(d) The applicant, because the only logical explanation for rescinding a job offer after an applicant tests positive for a prescription drug commonly used to treat anxiety is that the employer regarded the applicant as disabled.

While we may eventually find out the official answer to this puzzle (the EEOC recently filed suit alleging an ADA violation arising from these facts), if you answered (d), grab yourself a Kewpie Doll.

Still, the answer might not nearly be this cut-and-dry. The ADA is remarkably silent on the issue of testing for legally prescribed medications.

Thankfully, courts have stepped in to fill in the ADA’s omission. For example, Bates v. Dura Automotive Sys. (6th Cir. 8/26/14) [pdf].

1. Does the ADA permit an employer to test for prescription medications?

Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.

2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?

The court concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of job-restricted medications after a positive test.

How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?

1. Limit testing for the use of prescription drugs to safety-sensitive positions, and then only for those medications that could pose a safety risk.
2. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.
3. Be consistent in your treatment of employees who test positive.
4. Only disclose the results to those who need to know.

In conclusion, I want to focus for a moment on point No. 1 — limit testing for the use of prescription (any?) drugs to safety-sensitive positions and then only for those medications that could pose a safety risk.

Unless one is applying for a job that poses a safety risk, why are we drug testing at all? If you don’t want those who use illegal drugs to work for you, I get that.

That’s your right and your decision. But prescription drugs?

What are you hoping to learn from those tests? Unless you have a legitimate reason to hunt for medications that could impair an employee’s ability to safely perform their job, the risks of the test severely outweigh any benefits to gain.

You’ll learn a heap of protected medical information (or make assumptions based on the physical or mental impairments the drugs are used to treat). Either way, you are opening yourself up to a difficult disability-discrimination lawsuit if you rescind a job offer, as Rogers Behavioral Health in the lawsuit the EEOC recently filed.

Is this risk worth the minimal benefit?

May 2, 2019June 29, 2023

A Cautionary Tale on Why We Background Check Employees

Here is a cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby and Corbie Leslie filed a lawsuit against the Scott Fetzer Co. (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Fields had worked on and off since the 1970s for Crantz (a factory distributor of Fetzer-manufacured Kirby vacuums) as an independent dealer of Kirby vacuums. Over his decades of work, he had been charged with numerous criminal offenses, including embezzlement, unlawful imprisonment, domestic abuse, and rape.

In their civil lawsuit, the women claimed that Fetzer and Crantz were negligent in hiring Fields and allowing him to go on sales trips with them. The women also asserted claims against Fetzer alone for negligently failing to take appropriate precautions to prevent its independent contractors from hiring employees like Fields, and for negligent supervision of its independent distributor in its hiring practices.

The women alleged that after receiving Fields’s application to become a Distributor Trainee, Kirby conducted a limited background check on Fields, which showed that Fields had lied about his prior criminal record. They further alleged that had Kirby conducted a national search instead of a regional search, it would have discovered his criminal record was much more substantial than he disclosed (including rape). Nevertheless, with knowledge that “Fields had spent almost a year in jail for beating up his wife in 2000, and despite the fact that Kirby knew that Fields lied about his criminal record, Kirby approved Fields to be a Distributor Trainee.”

A year later, Fields applied to become a Factory Distributor. According to the women, Fields “again lied about his criminal record and Kirby again learned of his criminal record.” Despite again learning about Fields’s criminal past, “Kirby approved Fields’ application to become a Factory Distributor.” In the following years, Fields continued to commit crimes, including “forcible rape, first degree domestic violence, unlawful imprisonment, and assault.” While Fields was awaiting trial in the forcible rape case, Kirby learned that he had defrauded elderly customers. That crime appears to have been the tipping point for Kirby, and it terminated his factory distributorship.

Yet, after Fields’ release from prison in February 2012, Kirby rehired him, and he began selling their vacuums again. It was during this period of employment that he sexually assaulted Thompson, Raby, and Leslie.

I pulled these horrible facts from The Scott Fetzer Co. v. Great Am. Ins. Co. (6th Cir. 4/30/19) [pdf], an insurance coverage dispute relating to the long-since-resolved underlying claims brought by Thompson, Raby, and Leslie.

I hope, however, we can all spot the mistakes made here in screening and hiring Fields.

1. It’s no longer acceptable to limited criminal background checks on employees locally or regionally. Our society is mobile, and the background checks we are conducting on potential hires should reflect this mobility by being national in scope. Almost all criminal records are available online, and there is really no excuse to do anything other than a national search.
2. When you discover that an employee has lied about their criminal background, the only resolution is termination. The employment relationship is all about trust, and when that trust is broken the relationship is irreparably damaged.
3. I’m all for second chances and redemption, but an individual with a history of rape and domestic abuse is un-hireable. Convince me otherwise.
4. Why rehire someone after they are released from prison for rape, especially with all of this back story? This fact is the most head-scratching of them all.

There was little chance this story was going to have a happy ending. Let’s all learn from it by reviewing our own background screening and hiring processes.

July 28, 2016October 28, 2020

The Increasingly Important Role of Screening in Recruiting

Today’s recruiters face tough competition for good talent — and they worry about losing good candidates to long, drawn-out screening processes.

Recruiters are also facing increased pressure to fill more roles faster as 3 out of 4 companies plan to increase hiring. “With hiring on the rise, there is always a time challenge,” said Clare Hart, CEO of SterlingBackcheck, a background-checking provider. “The war for talent has enabled people with skills to change jobs more frequently, which is creating anxiety for recruiters tasked with filling those roles.”

At the same time, recruiters can’t afford to skip this vital step in the hiring process, especially with trends showing candidates are misrepresenting themselves more than ever. “I don’t want to be responsible for hiring someone with an unacceptable background,” said Kimberly Martin, senior human resources manager for Dentsply Sirona, a global dental supply company based in York, Pennsylvania. “People falsify their applications all the time.”

Mary O’Loughlin, vice president for global customer experience for HireRight, attributes this rise in part to the recession. “A lot of candidates were unemployed, and they are trying to expand previous jobs to cover those gaps,” she said.

Automate Everything

To meet the needs for faster, better and more seamless screening, employers are looking to their background-checking providers to streamline the screening process and make it as transparent and easy as possible for both the candidates and hiring managers. In response, vendors are revamping their technology and processes with a focus on improving the candidate experience from start to finish, and eliminating much of the manual entry and administrative tasks that bog recruiters down. “It’s all about addressing the pinpoints in the screening process,” O’Loughlin said.

These upgrades include integrating user platforms with clients’ applicant tracking systems in order to automate candidate data capture, offering tools that enable candidates to enter their own data from any device rather than requiring recruiters to do it, and providing text and email alerts to let the candidate and hiring manager know where they are in the screening process. Some vendors are also working with clients to develop candidate-facing tools including videos for their hiring sites to educate candidates about the screening process. “It helps set their expectations, which helps them build their brand as a great place to work,” she said.

To demonstrate the effect of these new tools, they are also offering more metrics to help customers understand how the screening process is functioning and to track key trends such as where red-flag candidates might be sourced from, said Christine Cunneen, CEO of Hire Image, a national background screening firm, and a member of the board of directors for the National Association of Professional Background Screeners. “Employers want more metrics about screening because it helps them to hire faster,” she said.

Contingents to Marijuana

Along with streamlining the screening process, employers are also turning to their screening vendors to help them manage a number of emerging trends in the broader recruiting world. One of the most notable trends is the tremendous uptick in use of contingent labor.

In 2015, the U.S. Labor Department found that 65 percent of employers anticipate an increase in the use of flexible staffing arrangements to meet their future talent needs, and consultancy Ardent Partners anticipates that 50 percent of the workforce will be contingent by 2020. Yet, less than half of organizations screen these workers, which exposes them to increased risks of negligence, fraud, theft and violence.

O’Loughlin said that interest in screening these workers is rising, though it can be more difficult to track down data about serial contracts, particularly because of how they record their work history. “They may say they worked at IBM, but really they were part of Beta Staffing Co. doing a project for IBM,” she said. “It’s a challenge to sort out.”

There is also the question of how to handle the data, and what you can screen for with contingent laborers, said Chris Dyer, founder and CEO of PeopleG2, a background checking company. “In most cases you can evaluate more data for contract workers because they have fewer protections,” he said. However, as contingent labor becomes a more dominant aspect of the workforce, that’s likely to change. Employers should pay attention to shifting regulatory trends. “If compliance rules for screening contract labor changes, it could impact the business,” he said.

Then there is the issue of drug screening, which Cunneen believes is an area of the background-checking process that is “ripe for change.” The big issue: marijuana. In many states marijuana use is legal in some or all cases, but it is still a federally banned substance, and unlike alcohol there are no tests to determine whether someone is using on the job because the drug stays in a person’s system for a long time. Employers are already asking how they should address marijuana testing if at all, she said, and she anticipates that there will be a lot of lawsuits as employers and regulators figure out how to handle this issue.

Lax Compliance Puts Employers at Risk

One area that employers are less worried about than they should be are general compliance rules. Less than one-fifth of employers say they are extremely concerned about compliance issues and related lawsuits despite the ongoing risk of lawsuits tied to mishandled screening processes.

In 2015 alone, BMW Manufacturing Co.; Chuck E. Cheese, also known as CEC Entertainment; Food Lion; Home Depot Inc.; and Whole Foods Market Inc. paid substantial Fair Credit Reporting Act class-action lawsuit settlements ranging from $716,400 to $3 million for conducting illegal background checks, failing to disclose background checks to applicants and breaking other FCRA rules.

Cities and states might also have a unique set of regulations governing what employers can screen for, how far back they can look, what constitutes a personal intrusion, and how exactly an employer needs to notify a candidate about the screening process. And when employers “screw up,” they face serious consequences, Cunneen said. “It is the employers’ responsibility to follow these rules, but they need to be able to rely on their background-screening provider to let them know what’s going on.”

This risk will only increase as more employers use these firms to screen employees in other countries where data can be less accessible, rules vary and information is harder to track down. Employers also need to be concerned about where screening data is stored when screening global candidates. “If a vendor’s data center is overseas, employers should be aware of their security protocols and their liability if that data is breached,” she said.

The issue of global compliance is becoming more important in light of the rapid growth of this $2 billion industry where several leading vendors have been acquiring competitors in order to quickly grow their global footprint. In the past two years alone, Accurate Background acquired fellow background checking company Hirease; HireRight acquired Powerchex, a pre-employment screening firm in the United Kingdom; and SterlingBackcheck acquired EmployeeScreenIQ then merged with cloud-based TalentWise earlier this year.

The industry has also seen HR tech firms from other areas of the workforce management software world moving into the background checking space through deals such as CareerBuilder’s acquisition of Aurico, a global provider of background screening and drug testing services. “Background screening is an essential part of recruitment and a natural extension of CareerBuilder’s product line,” CareerBuilder CEO Matt Ferguson said in a news release about the deal.

And this is just the beginning, said SterlingBackcheck’s Hart. “The industry is definitely consolidating, and we will continue to make future acquisitions as opportunities arise.”

Hart said that the consolidation trend is being driven by demands for better, faster and cheaper screening. “You gain advantages with scale,” she said, arguing that larger firms have the talent and resources to upgrade their platforms and provide a global service to meet the needs of international customers.

Vendors need to be thoughtful about their acquisitions and how they will continue to meet the needs of clients during the often tumultuous integration process, Dentsply Sirona’s Martin said. Martin previously worked with a background screening vendor who provided great service until it was acquired by another firm.

Suddenly the technology stopped working as well, links were broken or timed out, the screening process was delayed with no explanation, and in one case the vendor asked a candidate to travel 200 miles to do a drug screening.

“It was frustrating for the applicant, and it took up a lot of my time,” Martin said. It also caused a few good candidates to move on to the next job offer because the screening process took so long. “We hung in longer than we wanted to make sure the next vendor would be a good fit,” she said.

Martin now uses HireRight, which she said eliminated a lot of the technical glitches, automated much of the data entry, and in most cases completed the screening process in 10 days or less. “Background screening should feel seamless,” she said, adding that vendors need to stay on top of that customer experience or risk losing business. “If it’s not done well, customers will feel it,” she said, “and they have a lot of other options to choose from.”

Sarah Fister Gale is a writer based in the Chicago area. Comment below or email editors@workforce.com.