When hiring for open positions within a company, an employer may want to investigate an applicant’s past history through a process known as a pre-employment background check. This check or process is used to screen applicants to find quality employees. Employers want to know who they are working with before hiring a potential applicant. The background check will verify the credibility of the applicants resume’ and to evaluate if the applicant will be a potential threat to the company. The practice of obtaining a proper background check is oppressed with difficulties that vary from state to state and even county to county.
The most definitive background check is accurate, comprehensive, consistent, timely and of course legal. The background check must abide by all laws and regulations to ensure the hiring process is fair and unbiased. This includes hiring based on criminal record, gender, race, age, national origin, disability, credit scoring, and by search of social media. All hiring processes should be within accordance to Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, and national origin. Employers conduct background checks because they want to reduce the chances of hiring undesirable employees.
Some applicants feel intimidated when employers announce that a pre-employment screening will be conducted. Applicants may feel that they have something in their background that will potentially be counted against them. Background checks discourage applicants who also have something to hide. Employers are mandated to conduct background checks thoroughly. If background checks are not performed by the employer before hiring an employee, the employer may be partly responsible in case that employee later take part in any criminal actions towards
co-workers, consumers, or others. “And with our country’s War Against Terrorism, certain employers are under even more pressure to obtain and use criminal history check (Howie & Shapero, 2002). ” A resourceful employment application offers information about an applicant and the applicant’s employment history. The application not only gains information as to the applicant’s qualifications, it can also uncover gaps in employment and uncertain short-term job positions that may have been the consequence of a termination for cause.
However, an employer must be mindful that there are inquiries into an applicant’s private life that are not permitted under state and federal law. “For example, although it is not unlawful for employers to obtain information on an applicant’s criminal background, under federal and most state laws it is unlawful to inquire about an applicant’s arrest record. In the Equal Employment Opportunity Commission’s (EEOC) compliance manual, it advises that using arrest or conviction records as an absolute bar to employment disproportionately excludes certain racial groups (Rosen, 2012).
” There are some biases that affect the pre-employment screening process in the workplace. One such bias is the unfair practices of criminal background checking employers use in determining eligibility for employment. On most jobs, criminal background checks are necessary especially in cases in jobs such as nurses, childcare, police, teachers, and others. Employers have the right to select the most qualified applicant for a job. On the other hand, the employers do not have the right to discriminate based on race, sex, disability, national origin, religion, and age.
Some employers have a problem with hiring an applicant that has a criminal background. They would like to hire trustworthy and dependable applicants but past convictions are not always a determinate of an applicant’s performance or behavior. Criminal record checks are applied to verify if the applicant has any convictions of any crime that he/she committed. The check will determine if the applicant poses a threat to the company. The criminal record check may be arguably the most important of all the background checks.
Employers find it reassuring that an applicant has a clean criminal record if that job description involves caring for children, vulnerable adults or having access to funds and confidential information. “Employers who choose to conduct certain types of background investigations my face criticism of infringing on job applicants’ privacy or civil liberties. In terms of conducting criminal record checks, it is argued by some that a person who has served time for a crime has paid his/her debt to society and it is unfair to continually punish a person for their past behavior.
Many rehabilitated offenders wish to forget their past deeds, seek gainful employment, and contribute to society (Orlansky & Howard, 2003). ” Many argue that employers also look to consider additional factors such as any positive work experience since the sentence, references, or civic activity. Criminal record checks have major effects when it comes to hiring minorities. In America, African American and Hispanic receive far more criminal convictions than Caucasian individuals. “At current incarceration rates, the Bureau of Justice Statistics (BJS) estimates that approximately 9 percent of all men will serve time in state or federal prisons.
These projections differ by race and ethnicity, with figures of 28 percent for black males, 16 percent for Hispanic males, and 4 percent for white males (Bonczar and Beck 1997). The BJS also estimates that the median time served for recent prison releases is less than 2 years. In combination, these two facts suggest that at any point in time a large minority of non-institutionalized men have criminal history records. For certain subgroups of the population, African Americans in particular, the proportion with past criminal convictions is quite large (Holzer, 2006).
” Employers who check will be more likely to eliminate African American and Hispanic applicants on the basis of revealed information. “In September 2009, the EEOC filed the lawsuit EEOC v. Freeman Companies (Federal District Court, Maryland), alleging that the company used criminal-background checks to “unlawfully deprive a class of Black, Hispanic and male job applicants of equal employment opportunities. ” The case is in the discovery process. (The EEOC filed another case, EEOC v. PeopleMark [Federal District Court, Michigan], with similar allegations. ) As further evidenced by its recent lawsuit against the U.
S. Census Bureau, the EEOC is leading the effort to curtail employers’ use of criminal-background-check policies (Are criminal –background checks discriminatory? , 2012). ” The Society for Human Resource Management (SHRM) 2012 conducted a survey on organizations using criminal background check as a screening process for job applicants. The survey concluded that there are about 69 percent of organizations using criminal background checks. In order to be fair to the applicant, laws have been passed to keep employers from discriminating against the applicant.
The Equal Employment Opportunity Commission (EEOC) is an agency of the federal government that protects people from being discriminating against in the workplace. The EEOC has seen an increase in cases concerning biases in the pre-employment background checking companies are using. According to (Tahmincioglu, 2012) the EEOC has made it easier for applicants that have been convicted to be able to find work. In a panel vote of 4-to1, the Federal regulators have made rules to be followed in order to determine if there are any unfair biases against minorities when employers use the criminal background check and pre-employment screening.
According to HR Specialist (2010) there are four discriminatory hiring practices that the EEOC is interested in resolving. They include (1) limiting applicant’s researches, (2) screening by applicant’s name, (3) relying on criminal records, and (4) using credit scores to screen. The EEOC is using an initiative named “Eradicating Racism and Colorism from Employment” (E-RACE) to help in eliminating unfair hiring practices. Concerning criminal background checking the EEOC has determined the hiring decisions that are based only on an arrest or conviction record is discriminatory against the applicant.
The employer should only use the criminal record if it is required for a particular job. The employer should allow the applicant to explain the arrest or conviction. There are three factors to be considered even if an applicant has a record. These include (1) the nature and gravity of the offense, (2) how long the arrest or conviction occurred, and (3) what is the nature of the job to be performed (Clemente, 2011) The Pepsi Beverage Company has been held liable for using their pre-employment criminal background checking policy that was disproportion towards minorities.
Pepsi agreed to settle a class action lawsuit from the EEOC in which it was determined that their background checking policy geared towards their approximately 300 African-American applicants that had prior arrest and conviction records. Job applicants were denied employment with Pepsi even if their arrest did not carry any convictions or if their arrest did not have anything to do with the job that was applying for. The Pepsi Company settled the lawsuit for $3. 1 million dollars and implemented a new policy concerning the pre-employment procedures.
The company also offered the applicants that were affected by the old policy who still wanted to work for the company and were qualified a job (Hananel, 2012). There are descriptive stereotypes when it comes to the hiring of male and female applicants. In general, people in the US presume men and whites to be diffusely more competent than women. Women will be held to a stricter standard than males when being screened for a job position. In cases women are more qualified for a specific job, but are overlooked when competing with male applicants.
“In one of a series of studies designed to test Double Standards Theory, Foschi and colleagues (1994) had participants evaluate one male and one female applicant for an engineering position. In one condition of the study, the male applicant had a slightly better resume; in the other condition, the female applicant had a slightly better resume. When the male applicant’s resume was superior, participants recommended him for hire more frequently. However, when the female applicant’s resume was superior, she was no more likely to be recommended for hire than the lesser?
qualified male applicant (Correll & Benard, 2006). ” It is believed that the problem for women is that the behaviors and roles that are thought to be inappropriate for women are often those same roles and behaviors that are important for getting a job or advancing in an organization. Studies have not observed the effect of race in hiring for academic positions to the same degree that they have observed the effect of gender, but the effect is the same when compared to white males.
White males are believed to be more competent than other races, specifically African Americans. African Americans, like women, are also held to a stricter standard than white males. In a study of race and employer hiring behavior, researchers found that white applicants were called back approximately 50% more often than African American applicants, regardless of industry or occupation. One of the main indicators that racial discrimination has occurred in the hiring process involves the qualifications of the job applicants.
While a slight difference in qualifications between a minority and white candidate does not automatically indicate racial bias (if the lesser qualified white candidate is hired over the minority candidate), a substantial difference in qualifications has almost always been upheld by the courts as a sure sign of racial discrimination (Racial Discrimination Law, 2012). ” Some older applicants are deterred when it comes to applying for a job when the application asks for their date of birth. Asking for the date of birth in the selection process could be a violation under the Age Discrimination in Employment Act of 1967.
“The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA (Rosen, 2012). ” The EEOC also indicated that the reason for asking for date of birth should be clearly disclosed so that older applicants are not deterred from applying.
According to Title VII, it is unlawful for an applicant to be overlooked for a job opportunity due to their religious beliefs or natural origin. An applicant cannot be deprived of equal employment opportunity due to birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. If you have a sincere religious belief that conflicts with an employment rule or requirement, the law requires your employer to accommodate your beliefs, working with you to find a way around the conflict.
“Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group (Religious Discrimination, 2012). ” The Equal Employment Opportunity Commission filed a lawsuit to a company that turned a man down for not being a born-again Christian.
The lawsuit was on the behalf of Edward Wolfe, who applied for an opening at Nebraska-based Voss Lighting as an operations supervisor. “The lawsuit claims the company’s management asked Mr. Wolfe during a job interview how often he went to church, if he had been ‘saved’ and if he was willing to attend a Bible study held at the office before his shift would begin, according to the lawsuit’s filings (Show, 2012). ” Mr. Wolfe alleged that he was asked by the hiring manager if he would like to come in early to attend bible study. “The lawsuit claims that Voss violated a civil rights act and refused to offer Mr.
Wolfe the job because management didn’t like his responses to their inquiries on his religious beliefs (Show, 2012). ” The vice president of Voss Lighting refuted that Mr. Wolfe’s religious beliefs was the reason he was not hired and responded that the applicant that was hired had more lighting product experience and was more qualified for the position. A medical records check is conducted to verify if the applicant has the ability to perform the task or workload within the job description. This particular background check should not be requested unless there is purpose for doing so.
The employer must have justifiable evidence or reasoning when deciding to conduct a medical background check. Employer must have written permission from the applicant to access the medical information. The Americans with Disabilities Act of 1990 law disallows, under any circumstances, discrimination based on disability. More and more companies are using medical records as a background check for potential applicants for job positions. If the company is covered by the Occupational Safety and Health Act (OSHA), they have the right to retrieve the medical records of the applicants for the safety of the company and the applicant.
Americans with Disabilities Act (ADA) makes it illegal for an employer not to hire a potential applicant because of a disability. As long as the disability does not affect the applicant from performing the job duties, they must be considered for the job. The applicants have a right to privacy and the ADA makes it illegal to request medical records. The employer can only inquire about an applicant’s ability to perform a job duty. There are some states that have laws to protect the privacy of the medical records. The employer must get written consent before getting a medical record of an applicant.
In a case of Green v Joy Cone Company on the charges of the company pre-hiring medical authorization policy was a per se violation of the ADA and sought damages and relief. The company agreed on their policy they used using the medical inquiry because it was clear that would not take place until after the applicant was offered a job. The ADA allows an employer to conduct medical inquires or examinations after the applicant is hired as long as it is kept confidential. The company stated they never offered Green a job so they did not violate any rule (Nardone, 2003).
Credit reporting is one of the most controversial of the background checks. Employers conduct credit reporting for positions that require the routine handling of money or other financial resources. It is debated that applicants with a bad credit report are subject to miss work days due to finance issues. Also, employers are suspicious that applicants with bad credit reporting will be mischievous with company funds and other equipment. For instance, medical checks, employers must have written consent from the employee to conduct credit checks.
Employers are regulated through the Fair Credit Reporting Act (FCRA) when credit checking employees. Employers will be subject to legal actions by employers if they do not comply with the FCRA. There has been an increase in the use of credit reporting as a source of background checking from job applicants but as state of the economy has decreased some states have passed laws restricting employers from using credit reports as a means of making a hiring decision. As of now there are seven states that has stop using the credit reports which includes, California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington.
There are 20 more states that are considering the same as according to (Morton, 2011) of the National Conference of State Legislatures. The Fair Credit Reporting Act (FRCA) allows an employer to obtain information about the job applicant or employee to determine their credit worthiness, credit standing, character, reputation, and etc. The employer will have to obtain a written authorization in order to retrieve the information. The FCRA has rules to be followed if the employer rejects the applicant because of their credit report.
The employer should make a pre-adverse action disclosure that summarizes the findings based on the credit report of the applicant. If the employer makes a decision not to hire the applicant, the employer should provide an adverse action notice in the decision in which was made pertaining to the credit report. If these rules are not performed the applicant can sue the employer under the FCRA. The Federal Trade Commission charged HireRight Solutions which is a background screening company for violating the FCRA procedures. The company settled to pay $2. 6 million for the violation.
It is the second company to have to pay such a large civil penalty. The first was in 2006 against a consumer data broker company, ChoicePoint, in which they paid $10 million. HireRight Solutions is a company that provided background checks on job applicants and employees in order for employers to make hiring decisions. The company did make sure the information obtained was current or updated especially the criminal background checking records. They did not do their due diligence investigation. There were many inaccuracies in their determination which led to the applicant or employee being denied a job.
Also HireRight Solutions did not get written permission for the background check or for the applicants that agreed the company did not give the applicants a chance to dispute the findings. The company had to give at least 30 days for the applicant or employee to dispute the claims and notify the applicant or employee written findings of their investigation within five days (Investment Weekly News, 2012). Pre-employment background checks widely differentiate between employers. Not all employers require certain information if it does not pertain to that specific job description.
There are many different types of background checks that an employer can check or verify. The main pre-employment background checks are online content, criminal record, driving record, education verification, medical record, drug test, and credit reports and reference check. There are many other pieces of information that an employer can seek when in the process of hiring. Companies use the method of searching social media sites to pre-screen job applicants. “According to the SHRM Poll, survey respondents ranked LinkedIn as the most popular recruiting networking site (95 percent).
Facebook (58 percent) and Twitter (42 percent) were the next two sites (Daraugh, 2012). ” Social media sites offer considerable opportunities for employers who want to recruit prospective employees, but they also present significant challenges if employers want to use them for screening and background checks. An employer is exposed to possible risks of liability, discrimination claims and non-compliance with regulations when information provided on social media sites is used to screen or reject a candidate from consideration.
Visiting a person’s social media sites, clearly states the opportunity to view large amounts of information, such as an individual’s marital status, children, religion, politics, disabilities, and social interest. By law, these disclosures of personal information must be ignored in the hiring decision. “Companies that misuse information from candidates’ profiles to pre-screen job applicants may result in potential violations of Title VII of the Civil Rights Act, or other federal and state laws, say lawyers (Darragh, 2012).
”The employer must have policies in place that protect against any discriminatory practices and are clear in how social media information can be used by employees in the hiring process, but cannot be used as a deciding factor to not hire an applicant that meets all qualifications of the job. Reference checking is done by employer contacting former or current employers to inquire about a potential employee’s background at the company. Employers also contact person and professional references that were provided by an applicant.
These references can be co-workers, former professors, and community figures. Employers have the duty of protecting their employees, customers, clients, and visitors from employees that could potentially be a threat. “Employers are exposed to lawsuits for defamation of character and invasion claims when the provide information about current or former employees to other employers seeking job references” (Woska, 2007). In some cases, an employer does not want to lose an employee to another company. Many employers are reluctant to give information regarding an employee.
The employer is mandated to supply the new employer with truthful facts and what is requested. It is useful for an employee to get a written release form to receive information from the former employer to the new employer. Personal recommendations are sometimes looked at as being both useful and irrelevant. Some employers do not take in account of a friend, family member, or co-workers opinion on the applicant. It relatively depends on the opinion of a professional, such as former professor, community leader, or any other person that has an honorable ranking in society.
Employers view recommendations as a tool to receive information about an applicant’s character, which will let the employer know who they are recruiting to their company. Background checking is important in the pre-employment screening process. Many employers use background check in selecting the right applicant for the job position. Employers have the right to select the applicant that will not pose a risk or threat to others or the company. There are several types of background checks employers’ use.
The background checks have to be equal for all applicants so that the company will not be held liable for disparate treatment of anyone. There are biases in some of the background checking procedures that could be illegal. The information pertained could have some inaccuracies that could cause the applicant being denied a job. The employers should stay updated on the changes rules and laws pertaining to background checking. Also, employers are to evaluate the applicants objectively and fairly because it will help to protect the company from lawsuits; and the company will be able to select the right applicant for the job position.
Hiring managers should be properly trained when hiring potential employees. The hiring manager should be a reputable individual who has gained the respect, not only from the company, but also from the employees and the general public. Hiring managers should take the time to observe each and every applicant that meets the job qualifications, without observing an applicant’s personal background, age, appearance, and beliefs. An applicant should not be ignored or overlooked, due to a criminal record.
A hiring manager should take into account of how long ago the offense happened and the degree of the offense. Applicants need to know that they are protected by law and that if they have the credentials and the qualifications, they are eligible to apply for any job. Applicants should not be deterred from any available opening at a company. Applicants should take the legal action necessary if they have been disqualified for a job due to their race, gender, age, disability, criminal record, national origin, religious beliefs, and credit report.
The applicant must also have credible evidence to support their claim of bias hiring practices, especially if the claim is due to information found on a social network. The human resource professional and applicant, must be honest and upfront with their actions when providing information and seeking information. Human resources professionals are responsible for providing the best qualified candidates for vacant positions. Background checks are vital to employers hiring honest, educated and accountable applicants. In order to do so, the human resource professional should make that all laws are abided by.
On the other hand, human resource professionals have the right in hiring the applicant that has the qualifications, credentials, and personality that fit the job. Both parties must know the laws and regulations that they must abide by when in the hiring process. References Are criminal –background checks discriminatory? (2012). Retrieved from: http://www. diversityinc. com/legal-issues/are-criminal-background-checks-discriminatory/ Calvasina G, Calvasina R, Calvasina E (2012). Use of credit checks in employee selection: Legal and policy issues for employers.
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