Everyone knows it's tough to get a job these days. The task is that much harder if you have any kind of blemish on your past.
The
use of background checks to screen potential employees has become a
billion-dollar business. More than
90 percent of employers in the U.S.
conduct criminal background checks, at least on some potential hires,
according to a
recent study by the National Consumer Law Center.
In
addition to
criminal records, businesses commonly look into all kinds
of other information, such as
credit reports and driving records.
"Our
approach has been, there should be a job for everybody, but not
everyone is appropriate for every job," says attorney Les Rosen, head of
Employment Screening Resources, a background check firm in California.
How Far Is Too Far?
Businesses
can be legally liable if they don't check out workers who go on to
commit crimes while on the job. And no company wants the embarrassment
of finding out later that high-profile employees fibbed on their
resumes, as happened recently with Yahoo CEO Scott Thompson.
May 13:
Scott Thompson steps down as chief executive of Yahoo after it comes to
light he didn't have a computer science degree from Stonehill College
as claimed on his resume.
2007:
Marilee Jones resigns as dean of admissions at MIT, admitting she
falsified her credentials when she first went to work for the university
28 years prior.
2006:
Dave Edmundson steps down after eight months as CEO of RadioShack and
11 years with the company. He had claimed two college degrees but had
none.
2002: Ronald
Zarrella offers to step down as CEO of Bausch & Lomb when it is
revealed he doesn't have an M.B.A. from New York University, as stated
on his resume. He loses a big bonus but remains on the job until 2008.
2001:
George O'Leary steps down as head football coach at Notre Dame five
days after being hired, having falsely claimed to have a master's degree
in education and to have played college football for three years.
1987:
Then-Sen. Joe Biden drops out of the presidential race amid revelations
of plagiarism and false claims about having received a full scholarship
to law school and having earned three undergraduate degrees.
But consumer advocates say employers have become too cautious — and too nosy.
Demands
from some companies and universities that applicants hand over their
passwords to social media pages such as Facebook led Maryland to enact a
prohibition on the practice earlier this month. Similar legislation is
pending in Congress and a handful of other states. Lawmakers also have
grown concerned that employers are using background checks to screen out
entire categories of potential workers in ways that are discriminatory.
"The
fact of the matter is that there aren't tremendous privacy protections
for job applicants and employees in this country," says Judy Conti, who
lobbies for the National Employment Law Center, an advocacy group for
low-income and unemployed workers.
"Background checks are a very big issue, even though they often bear no relation to the job you do," she says.
Last
month, the Equal Employment Opportunity Commission revised its
guidelines regarding the use of criminal background checks. This didn't
represent so much a change in policy as an attempt to clarify the rules.
The
gist was that when it comes to criminal records, employers should look
only at those cases that are directly relevant to the position. No one
thinks that banks need to be hiring embezzlers to handle money, but the
EEOC wants employers only to consider convictions — not arrests — and to
make an individual assessment in each case as to whether the criminal
activity is directly related to the job at hand.
Companies
that currently say they will not consider applicants with any sort of
criminal background for any job will very likely have to rethink their
approach.
"The EEOC has long held the
position that a blanket use of criminal records for screening people out
of jobs can often constitute disparate impact discrimination," Conti
says, adding that credit reports also can be a proxy for racial
discrimination.
'You Don't Want To Have A Police State'
Massachusetts
Gov. Deval Patrick vetoed parts of a spending bill a couple of weeks
ago that would have required criminal history checks, urine screening
and fingerprinting and photographs of all new hires at the state Gaming
Commission.
It's not that Patrick, a
Democrat, doesn't share the Legislature's concern about preventing
corruption, but he concluded that mandating urine tests for potential
receptionists went a step beyond what was necessary.
Every state has
different regulations regarding which types of information employers can
solicit from job applicants, but here are some general guidelines.
Generally OK To Ask About
- Aliases/previous identities
- Proof of age if hires must be at least 18
- Legal status to work
- Criminal convictions or pending charges
- Educational attainment
- Military service
Not OK
- Questions that lead to disclosure of ages above 40
- Citizenship/national original
- Race
- Religion
- Sexual orientation
- Marital status
Sometimes OK
- Arrests
- Disability
— questions can be asked about ability to perform specific required
task but not about general level of disability, treatment or time missed
in previous jobs.
Source: Les Rosen, Safe Hiring Manual
This is the kind of balancing act employers in
and out of government have to perform all the time, says Rosen, the
background check attorney in California. Every story of a person denied a
job because of some youthful indiscretion decades in the past seems to
be balanced by the case of a registered sex offender whose record wasn't
properly checked before being hired for a job involving interaction
with the public.
"You don't want to have a police state," Rosen says, "but you also don't want any liar or miscreant to get any job they want."
The
trend has been toward more checks, driven by factors such as worries
about immigration status, scandals involving matters such as child abuse
and overall security concerns following the terrorist attacks of Sept.
11, 2001. The ability to do those checks has been made easier by the
growth of databases and search engines.
Asking
job applicants to supply passwords for their social media accounts
seems to cross a line, Conti says. It makes people nervous that there
will be no limits on what employers will ask to see. Some employers also
request to see tax returns or W-2 forms.
Still,
for all the attention they've gotten, instances of companies seeking
social media passwords are rare. No company with an alert human
resources department wants to find out things on
Facebook that it isn't
allowed to ask during the normal interview process, such as information
about an applicant's age or religion.
"Somebody
says 'it's all over my
Facebook page that I'm gay' and they file a
lawsuit," Conti says. "That would be hard to defend against."
Using Information Wisely
State
lawmakers also are concerned about employers looking into people's
credit. Over the past three years, seven states have enacted laws
barring employers in many instances from gaining access to credit
reports. Fifteen states have similar legislation pending.
They
hope to avoid situations where people need a job to get their finances
back in order, yet can't get a job because their finances aren't in
order.
Many lawmakers concerned with
background checks are motivated by the desire to tear down barriers to
employment, helping even convicted criminals find productive paths back
into society in hopes of keeping them from re-offending.
For
employers who are understandably nervous about hiring people with
criminal pasts or questionable personal circumstances, background checks
offer some peace of mind — and some protection down the road from legal
liability.
But they don't always weed out
bad actors. Too often, companies rely on cheap vendors that charge only
$10 or $20 and then perform cursory searches of databases often riddled
with inaccurate information.
The current
spate of regulatory pressures — and some lawsuits over misinformation —
will help "cull the herd a bit" and lead more companies to use reliable
screeners, says Rosen, of Employment Screening Resources.
No
one expects a sudden stop to background checks. The key will be what
employers do with the information they gather. Companies should ask
applicants about potentially negative reports to give them a chance to
explain away errors that inevitably come up and also to put their
circumstances into context, says Cynthia Springer, a labor and
employment lawyer in Indiana.
"Collecting the
information isn't the big issue right now, it's how it's being used,"
Springer says. "You should be doing a case-by-case analysis anytime
you're using criminal background information in making a decision."
