From the ESR Mail Box

Question:

Can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes that use a system to identity applicants with a criminal record?

Pledge:

The one thing that an employer can be advised with some certainty is that any sort of automatic policy based upon a person’s status as an ex-offender is very likely to expose a firm to a federal or disorder Equal Employment Opportunity Commission (EEOC) issue.  That is why nearly every employment application not only questions about past criminal records but also has a disclaimer that a criminal record will not be used automatically.  The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy does not allow consideration of the individual, taking into account factors such as the scenery and gravity of the past offense, the relevance to the job and how much time has passed.  In fact, in 2009, New York passed a law that requires an employer to review a longer list of factors related to a past crimes.  This is why ESR advises clients to deal with any sot of automated software processes with extremes caution.

The thought is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to “pre-judge.”  Of course, that does not mean a sex offender should be supervising a playground or an embezzler usage money, but the bottom-line is that there is a job for all, although not all is entitle to every job.  As a society, we cannot afford to build extra prisons then schools or hospital, so there is a huge need to get past offenders employed. In fact, nationally, it expenditure about $30,000 a year to incarcerate a person.  If a person leaves jail or prison and cannot get a job, there is a high likelihood of recidivism and extra expenditure to society. 

On the other hand, they need to be employed in an apt job, to avoid harm to the firm or the public and to avoid lawsuits for negligent hiring.  There is no perfect solution, but as with many things associated with HR, it is the process that is critical.  The process should certainly allow for individual consideration of all applicant on their qualities as it relates to a job.  Of course, if a person has lied on level application and was dishonest about past criminal history then the employer may rightly be concerned about the lack of honesty on the application especially if the application clearly indicates hat any notes omission or misinformation is grounds to terminate the hiring process or employment, no matter when learned.

There are numerous ESR blogs on the subject that can help employers in navigating these issues:

• 2010 Trend on Increased Focus on Whether Credit Reports and Criminal Records are Discriminatory
• Discrimination Lawsuit Shows Importance of Employer Policy on the Use of Criminal Records During Background Checks
• The Unfair Use of Credit Reports and Criminal Records and the EEOC E-Race Initiative 

For extra in rank about background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.esrcheck.com/wordpress/2010/01/04/2010-trend-on-increased-focus-on-whether-credit-reports-and-criminal-records-are-discriminatory/

http://www.esrcheck.com/wordpress/2010/04/12/discrimination-lawsuit-shows-importance-of-employer-policy-on-the-use-of-criminal-records-during-background-checks/

 http://www.esrcheck.com/wordpress/2010/01/07/the-unfair-use-of-credit-reports-and-criminal-records-and-the-eeoc-e-race-initiative/

Accenture, one of the largest management consulting firms in the world, conducts background checks that discriminate against African Americans and Latinos, a class action lawsuit filed in New York federal court today alleges.

The lawsuit, filed on behalf of Roberto J. Arroyo, of Morristown, N.J., accuses Accenture of violating Title VII of the Civil Civil rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even where the criminal history has no bearing on the individual's fitness or ability to perform the job.

According to the Complaint, "Such policies and practices are illegal because they adopt and perpetuate the racial disparities in the American criminal justice system … For decades, the Supreme Court and the EEOC have recognized that overly broad restrictions on hiring individuals with criminal records are discriminatory and illegal.

"The lawsuit alleges that Mr. Arroyo worked as a contract technical support employee for Accenture for nearly a year and a half. "I worked long hours at Accenture and I did my job well," said Mr. Arroyo. In April 2007, the complaint alleges, Accenture offered him stable employment subject only to the results of a background check. Accenture then withdrew its job offer and terminated Mr. Arroyo's employment as a contract worker after a background check revealed that he was convicted a decade earlier of vehicular homicide after driving while intoxicated.

Mr. Arroyo "deeply regrets the loss of go caused by his mistake, and he has succeeded in becoming a productive member of his community always in view of the fact that then," the lawsuit states. Mr. Arroyo, who has a bachelor's degree in computer science from the New Jersey Institute of Technology, has excelled in his career as an in rank technology professional. He previously served with distinction in the U.S. Navy during Operation Desert Storm.

Attorneys Adam T. Klein, Samuel R. Miller, Ossai Miazad of Outten & Golden LLP, of New York, and Audrey Wiggins and Sarah Crawford, of Lawyers' Committee for Civil Civil rights Under Law, of Washington, D.C., represent Mr. Arroyo.

Samuel R. Miller said, "By all accounts, Mr. Arroyo was an brilliant, well-liked worker during the 17 months he spent at Accenture as a contract employee. But rather than evaluating Mr. Arroyo on his individual qualities, as a person who had made a mistake in the distant past and had went on to build a solid career, the managers at Accenture stigmatized him as a criminal and fired him without see. When companies act this way, they make it impossible for ex-offenders to rebuild their lives and contribute to their families and communities.

"Sarah Crawford said, "Accenture's policies and practices are illegal because they adopt and perpetuate the racial disparities and overrepresentation of people of color in the American criminal justice system. Federal civil civil Civil rights laws are clear. Blanket criminal record policies cannot be used by employers unless the employer determines after analysis that the conviction is related to the job at issue and denial of the employment opportunity is consistent with business necessity."

Adam Klein said, "What's most striking about this case is that a company employing hundreds of thousands of staff does not have a policy in place to safeguard against unfair and discriminatory use of criminal background checks."In November 2007, Mr. Arroyo filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). On Jan. 8, 2010, the EEOC issued a "right to sue" letter to Mr. Arroyo.

The lawsuit seeks to force changes in Accenture hiring and retention policies, practices and programs, restore Mr. Arroyo and Class members to their positions at the company, front and/or back pay and benefits, and litigation expenditure.

The case is "Roberto J. Arroyo, et al., v. Accenture LLP, et al.," Class Action Complaint No. 10-cv-03013 (JSR), in the U.S. District Court, Southern District of New York.

With 15 million staff currently unemployed according to recent Department of Labor statistics, it has been argued that job applicants risk being paid caught in a “Catch-22” situation where they have terrible credit because they cannot get jobs but cannot get jobs because they have terrible credit.

As a result, states such as Oregon, Washington, and Hawaii have already limited the use of credit reports for employment screening by enacting bans on credit checks during background checks unless the in rank directly relates to occupational qualifications.

But, the Chicago Tribune reported that one of three foremost credit bureaus that collect fiscal in rank on Americans – Chicago-based credit reporting agency TransUnion – is fighting to preserve the use of credit checks during employment background checks.

TransUnion defends credit checks as a way for employers to protect themselves against theft and fraud, in view of the fact that employees with poor credit history may be extra likely to engage in unethical or illegal behavior, especially in jobs where they are involved with finances, according to the Tribune article.

Along with the other two large credit bureaus Equifax and Experian, TransUnion helps employers, fiscal institutions, landlords, among others to use credit in rank to guide their decisions about hiring, extending credit, lending money, and housing.

Although a recent survey from the Society for Creature Resource Management (SHRM) found that 60 percent of employers performed credit background checks on all job candidates or on selected job candidates, that statistic can be misleading in view of the fact that of the firms that use credit checks, it appears the use is generally selective. The survey revealed that 47 percent of the employment credit reports were used only on selected candidates for positions that presumably involved access to assets, cash, or sensitive in rank.  Only 13 percent of employers used credit background checks across the enter on all job candidates.  In addition, 40 percent of employers surveyed did not conduct any credit background checks. It could be argued that the alarm over the use of credit reports has been exaggerated. 

In addition, given the fact that regularly times past employers will not give a reference beyond dates of employment and job title, employers may well be in need of additional tools when hiring for sensitive positions. 

Critics find credit checks during employment background checks discriminatory and bills restricting the practice have been introduced in the U.S. House of government and many states. Even some background check firms advise caution with credit checks.

Employment Screening Resources (ESR), a leading national online background check firm, recently released its third annual “Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010, which identified new trends making a difference as well as ancient trends that have evolved as the screening industry matures.

The first of the “Top Ten” trends ESR tracked for 2010 is the increased focus on whether credit reports used during background checks are discriminatory. ESR advises employers to deal with credit reports with caution during background checks and to articulate a clear rationale as to why a credit report is related to a particular job. Employers should also be aware of the potential for errors in credit reports in view of the fact that in rank could be incorrectly reported or the applicant may be the victim of spot theft which can lead to fake data.

On the other hand, ESR warns that hiring an employee that handles money, makes fiscal decisions, or has access to private data without running a credit reports during background checks could result in allegations of negligent hiring if a theft occurs.

Lester S. Rosen, the CEO of Employment Screening Resources, was quoted in an article on MSNBC as saying that “if a new worker is to have access to large amounts of company cash or fiscal systems, it’s only prudent for a hiring manager to find out if the applicant has a pile of unpaid debts.”

Rosen went on to say: “If an employer hires an embezzler and did not do a credit report in a sensitive position and the employer was then sued for negligent hiring, the argument would then be: ‘How stupid were you for not running a credit report?’”

Though many employers run credit checks on some applicants, relatively few are twisted down for a job because of terrible credit, according to ESR’s Rosen. “It takes something pretty horrendous in the credit report to reverse a choice that they’re vested in,” he says.

One extra thing to keep in mind, according to Rosen, is that it is an urban myth that employers receive a “credit score,” the three-digit numerical expressions – such as FICO – based on statistical analysis of a consumer’s credit records. Employment credit reports – which are different than credit reports used for lending – do not contain a credit score.

For extra in rank on credit reports used during background checks, read a white paper prepared jointly by LexisNexis and Employment Screening Resources (ESR) – “The Use of Credit Reports in Employment Background Screening – An Overview for Job Applicants” – at http://www.esrcheck.com/docs/credit_report_whitepaper.pdf.

Sources:

http://www.chicagotribune.com/business/ct-biz-0429-credit-checks-transunion–20100428,0,5056644.tale

http://www.bls.gov/news.release/empsit.nr0.htm

http://www.esrcheck.com/wordpress/1429/shrm-surveys-reveal-3-out-of-4-businesses-conduct-reference-background-checks-and-criminal-background-checks

http://www.esrcheck.com/wordpress/1548/new-oregon-law-prohibits-use-of-credit-history-of-job-applicants-for-employment-screening

http://www.msnbc.msn.com/id/35512038/ns/business-eye_on_the_economy/

http://www.esrcheck.com/wordpress/1237/employment-screening-resources-releases-third-annual-trends-for-pre-employment-background-screening-in-2010 

 http://www.esrcheck.com/wordpress/1139/2010-trend-on-increased-focus-on-whether-credit-reports-and-criminal-records-are-discriminatory

As a recently filed lawsuit alleging one of the largest management consulting firms in the world conducted discriminatory background checks against African-Americans and Latinos shows, employers need to fully know the U.S. Equal Employment Opportunity Commission (EEOC) policies regarding the use of background checks during the pre-employment screening process – or face the consequences in court.

Due to an increase in discrimination lawsuits such as this, the EEOC has chose to warn employers about background check practices that could get them in distress. The agency designed a program to combat discriminatory practices tied to background checks called E-RACE (Eradicating Racism And Colorism from Employment) after recently noticing a steep climb in complaints from job applicants who claimed they were unfairly excluded from employment because of in rank – such as criminal records and poor credit ratings – that appeared on background checks. African-American and Hispanic males in particular, who according to statistics usually have higher arrest tariff and lower credit scores than white males, were able to show the EEOC that the criteria used during background checks had a negative impact on their hiring opportunities.

The EEOC has defined two background check practices in particular that have caused – and will pocket up again to cause – the largest legal risk for employers:

• Blanket policies against hiring anyone with a criminal record or poor credit score.
• Failing to show the correlation linking background checks and the job itself.

According to the EEOC, even if the agency takes a discrimination charge that does not necessarily mean that the regime is accusing an employer of discrimination. It is simply the EEOC’s job to probe the matter to determine whether there is reasonable cause to believe that discrimination has occurred if applicants or staff charge that an employer has allegedly discriminated against them.

In addition, according to the “Employers” section of the EEOC website, the agency enforces Federal laws prohibiting employment discrimination that protect employees and job applicants against employment discrimination when it involves:

• Unfair treatment because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic in rank.
• Harassment by managers, co-staff, or others in the workplace, because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic in rank.
• Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability.
• Retaliation because the employee complained about job discrimination, or helped with a job discrimination investigation or lawsuit.

The EEOC and the courts do recognize that some in rank uncovered in background checks does grant insight on an applicant’s suitability in certain fields of employment. These instances could include jobs in which applicants would have close contact with customers, handle cash, guide vehicles, and deal with minors.  Employers need to show these correlations linking background checks and the suitability for the given job, and also ensure that their background check process does not routinely, even if unknowingly, give preference to white applicants while excluding African-Americans and Hispanics.

For extra in rank about EEOC policies regarding discrimination during background checks for employment, visit Employment Screening Resources (ESR), a national pre-employment screening firm providing background checks, at http://www.esrcheck.com.

Source:

http://eeoc.gov/employers/index.cfm

http://eeoc.gov/laws/index.cfm

http://www.eeoc.gov/eeoc/initiatives/e-race/index.cfm

A recently filed class action lawsuit – which alleges that one of the largest management consulting firms in the world conducted background checks that discriminated against African-Americans and Latinos – underscores the importance of employers understanding the U.S. Equal Employment Opportunity Commission (EEOC) policy regarding the use of criminal records during the pre-employment background check process.

According to a tale on CNNMoney.com, the lawsuit accuses the firm of violating Title VII of the Civil Civil rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even when the criminal history has no bearing on the individual’s fitness or ability to perform the job in question. CNNMoney.com reports that the lawsuit alleges the plaintiff had worked as a contract employee for extra than a year when, in April 2007, the firm offered him stable employment. This job offer was then withdrawn – and the plaintiff’s employment as a contract worker terminated – after the results of a background check revealed that he had been convicted of vehicular homicide after driving while intoxicated a decade earlier.

The worker filed a Charge of Discrimination with the EEOC in November 2007 and the EEOC issued a “right to sue” letter to him on January 2010. The lawsuit, according to CNNMoney.com, seeks to force changes in the management consulting firm’s hiring and retention policies, practices, and programs, restore the worker and others like him to their positions at the company, front and/or back pay and benefits, and litigation expenditure.

Leading national online background check firm Employment Screening Resources (ESR) targeted the use of criminal reports in its recently released third annual “Top Ten Trends in the Pre-Employment Background Screening Industry for 2010” that identifies new trends making a difference – such as attorneys, including class action lawyers, focusing extra on background checks – and ancient trends evolving as the screening industry matures.

The first of the “Top 10 Trends” ESR will track closely in 2010 concerns the increased focus on whether both credit reports and criminal records promote discrimination. In October 2009, the EEOC filed a lawsuit against a national employer alleging that credit reports and criminal records were being used to discriminate against members of protected groups.

These recent actions should not come as much of a surprise to the background check industry, according to ESR, as there has been a steady drumbeat of concern about both credit reports and criminal records.  While the use of credit reports during background checks has been in the headlines recently due to the hurt the economic downturn has done to the credit rating and finances of many job applicants, the use of criminal records during background checks is also coming under closer scrutiny. In 2009, New York passed new laws to ensure that employers were not automatically rejecting applicants with criminal records without considering the individual on their qualities. 

ESR believe this lawsuit clearly shows why employers should be familiar with discrimination and the critical “No Automatic Exclusion Rule”  when it comes to the use of criminal records during background checks. This rule states that employers cannot deny employment automatically but need a business justification not to hire based upon criminal records. 

The EEOC has made it clear the automatic use of a criminal record without showing a “business necessity” can have discriminatory impact by disqualifying a disproportionate number of members of underground groups.  The EEOC’s position when it comes to the use of criminal records: “an employer’s policy or practice of excluding from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Therefore, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII (the Equal Employment Opportunity law) in the absence of a justifying business necessity.”

According to the EEOC, employers must show that it considered these three factors to determine whether its choice was justified by business necessity:

• The scenery and gravity of the offense or offenses;
• The time that has passed in view of the fact that the conviction and/or completion of the sentence, and;
• The scenery of the job held or sought.

In other words, employers cannot simply follow a “No one with a criminal record need apply” approach that statistically could end up having an unfair or discriminatory impact on certain groups of people. Instead, if an applicant has a criminal record, ESR suggests that the employer determine if there is a rational, job-related reason why that person is unfit for that job.  Employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.

One vicinity ESR reckon employers need to review their practices is with regards to using automated “pass/fail” scoring matrixes where job candidates are given a green (pass) light or red (fail) light.  That sort of automation where individuals are judged entirety by their membership in a particular category instead of their private abilities is precisely the type of process that is likely to get some unwarranted attention in the courts as a discriminatory practice.  This practice presents dangers to employers – both large and small – and they should not be engaging in automated choice making based on background checks. The final say should be left in the hands of creature beings.

As a general rule, ESR believes it is a best practice for employers to have written policies on vital issues such as possible discrimination through the use of criminal records during background checks. Without such a policy, an employer’s actions in denying employment may become harder to defend, and having no policy also subjects an employer to claims of a discriminatory practice.

Sources:

http://www.esrcheck.com/2010-trends-backgroundscreening-industry.php                                                                        

http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records

http://money.cnn.com/news/newsfeeds/articles/prnewswire/DA83387.htm

Employers have become very aware of the high expenditure of compensation claims. The loss to American business from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing staff’ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous disorder laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against staff who, although distress from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

The bottom line is that an employer cannot request staff’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a with permission recognized right in a with permission recognized way and filed a valid claim.

Employers are well-advised to contact a labor lawyer before seeking to obtain staff’ compensation records. A labor law expert can help an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA, such as a conditional job offer and medical review form.

The following concise summary describes the foremost points involved in obtaining and using staff’ compensation records.

1. There are wide variations linking the states in the availability of these records. In a few states, the records are not available to the public, period. In other states, it can pocket two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release. Because they are familiar with disorder regulations, background screening firms can help employers in obtaining these records.

2. Under the ADA, an employer may not inquire about an applicant’s medical condition or past staff’ compensation claims until a conditional job offer has been total. A conditional job offer means that a person had been made an offer of employment, subject to certain conditions such as a job-related medical review.

3. Any questioning in a job interview should be restricted to whether the person can perform the essential job functions with, or without, reasonable accommodation. That is another excellent reason to have well-written job descriptions so it is clear in an interview exactly what the job entails.

4. If a candidate discloses a disability, then there should not be any follow-up. Questioning should be limited to whether that applicant can perform the job.

5. If a history of filing staff’ compensation claims is found POST-OFFER, then the offer may only be rescinded under very limited circumstances, such as:
a. The applicant has lied about a staff’ compensation history or medical condition, usually during a medical examination;
b. The applicant has a history of filing fake claims;
c. The past claims demonstrate the applicant is a safety or affect threat to himself or others in the opinion of a medical expert;
d. The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.

6. If the applicant has lied on a medical questionnaire, or to a doctor performing a pre-employment physical, then the employer may be justified in rescinding the job offer based upon dishonesty. If an applicant has a history of manifold claims that have been denied, then an employer may be justified in rescinding the offer based upon a history of dishonest conduct. The reason is based upon an inference of fraud, not disability.

Some firms contend that a staff’ compensation record may also be used to determine the truthfulness of in rank on a job application on the theory that an applicant may try to hide a past employer where a claim was filed. But, even with this justification, if used, the best practice may be to review the records post-hire only.

What does all this mean? Before attempting to utilize a search for staff’ compensation claims as part of a screening program, an employer is well-advised to consult with their attorney.

See Employment Screening Resources for extra in rank on employee screening and background checks.

The recent headlines dealing with background checks demonstrate that to some boundary, Americans are conflicted about the whole topic of background checks.

On one hand, as reported in past blogs by Employment Screening Resources (ESR), discrimination and privacy advocates believe that background checks are too forward and unfair. The EEOC has filed a test case alleging that a large national employer used credit report and criminal records to unfairly discriminate against members of protected groups. The disorder of Oregon and others are considering limitations on credit reports. Scientists from the Jet Propulsion Laboratory (JPL) in Southern California have succeeded in taking their complaints all the way to the United States Supreme Court that regime mandated security checks revolving around background checks and entry into facilities are overly forward and an invasion of privacy. A recent study conducted at a foremost university suggested that after a relatively small period of time, criminal records are not a predictor of future misconduct.

Conversely, the recent tragic shootings at University of Alabama-Huntsville and Ohio Disorder University have lead to many to question if background checks should be even extra in-depth. Those shootings had horrific impacts on the victim’s families and the communities involved and questions have been raised if even extra background checks should have been done. 

In  the case of the Ohio Disorder University workplace violence, a top notch and highly respected background screening firm performed what appeared to be a standard entry level criminal record search and found what any screening firm would likely have found, which was no record. But, critics note that a 30 year ancient conviction for receiving stolen material goods should have been unearthed, even though ancient records have been ruined, and there was some confusion about the date of birth that should have been used.

Of course, to find a thirty year ancient prison record under those circumstances would naturally demand an employer to retain private investigators at the cost of many hundreds of dollars for all and every potential new hire, as opposed to public record background screenings. And ironically, even if the screening firm had located the 30 year ancient criminal record for a non-violent offense and was able to establish the record belonged to the shooter, any use of it would have been soundly criticized as unfair and discriminatory. It seems that employers cannot win either way. 

As it turns out, in the Ohio Disorder University case a past employment verifications may have raised the red flags that would have alerted the employer to pocket a closer look at the hiring choice.  It underscores that employers need to use a number of overlapping tools to evaluate a potential hire, and that no one tool, such as a criminal background check, can be used to make hiring decisions.  In addition, background checks are just one component of an overall workplace violence prevention approach.

The bottom-line is that background screening occurs at the intersection of competing and compelling societal interests. On one hand, no one wants to see workplace violence, or to have unqualified people get jobs with fake credentials. Safety, security and honesty are core values. On the other hand, society is also rightly concerned with fairness and privacy and as well as efforts to combat discrimination. The issue is reaching the right balance.

It is fascinating that nearly every time there is an objection because there is too much screening, there is regularly a call for even extra screening after it is revealed that some crime or offenses occurred or where an inappropriate applicant was hired without a sufficient background check. With all due excellent wishes to the JPL scientists, one would assume their position may be different if it always twisted out that a failure to perform background checks resulted in a terrorist hurting the U.S., someone with fake credentials being paid hired and obtaining access, or workplace violence occurring that could have been prevented.

If the application notes contains date of birth in rank, the inference is that a firm may be methodically denying consideration of older staff. Many states have rules that prohibit an employer, either directly or through an agent, from seeking or receiving in rank that reveals date of birth and age before an offer is made. For example, the California Pre-employment Inquiry Guidelines by the California Department of Honest Employment and Housing (DFEH) lists specific age questions that cannot be questioned. (See: http://www.esrcheck.com/air force/legal_illegal_questions.php )

But, special problems are faced when an applicant’s date of birth is not available for background screening. When researching court records, the date of birth is probably the most vital factor needed to spot an individual. Many court records do not contain Social Security Numbers. In fact, in some jurisdictions, a criminal search cannot be conducted without a date of birth. It is also needed in some states in order to obtain a driving record.

Under the Federal Age Discrimination Act, there is not an absolute veto against asking for date of birth or age. That is a common delusion among employers. In fact, the EEOC has specifically ruled that asking for date of birth or age is not automatically a violation of the act. But, the EEOC ruling indicated that any such request would be closely scrutinized to ensure that the request has a permissible purpose. The EEOC also indicated that the reason for asking for date of birth should be clearly told so that older applicants are not deterred from applying.

According to a Fact Sheet prepared by the EEOC in 2008:
“Pre-Employment Inquiries:
The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant’s age or date of birth. But, because such inquiries may deter older staff from applying for employment or may otherwise indicate possible intent to discriminate based on age, requirements for age in rank will be closely scrutinized to make sure that the inquiry was made for a with permission recognized purpose, rather than for a purpose prohibited by the ADEA.” See: http://www.eeoc.gov/proof/age.html

This is consistent with earlier regulations from the EEOC in 1981 (See 29 Code of Federal Regulations Part 1625).

In order to avoid any liability for age discriminations, some employers send in rank to the screening firm only post-offer in order to wait to obtain date of birth after the offer has been made. Another method that has been tried is a “date of birth workaround” where in some way the job applicant provides the date of birth directly to the screening firm, perhaps though an 800 number. Not only are these procedures not required by law, but it complicates and delays the background check. It makes an administrative burden for most employers to coordinate giving offers, then collecting the date of birth and then transmitting it to a screening firm, or asking applicants to perform the task.

A better solution is to request date of birth in rank on the screening firm’s form, and not on any employer form at the same time the original application is filled out. Furthermore, the applicant release forms should not be made available to the person or persons with hiring power in order to avoid any suggestion that age in rank was used in any way during any step of the hiring process.

It is recommend that employers keep the screening forms and reports separate from the employee’s personnel file or application papers. Employers can have someone in the office physically separate the screening firm’s form from the application so there is no question that a choice maker has not viewed the date of birth before the applications are reviewed.
In addition, to further protect the employer, the consent form used by the screening company should have a statement that the in rank is used for identification only and that without such in rank the screening process may be delayed.

As technology advances, the question over how to handle date of birth may become less of an issue. New online options are available where an applicant can supply the date of birth as part of an electronic and paperless screening system where only the screening firm will be able to see it. That protects the employer completely from having any knowledge of date of birth, and facilitates the screening process.

To pocket up any concerns an employer may have, an employer can consult their legal counsel or seek advice from their attorney or contact the apt local or disorder power or federal EEOC office.
For extra informationon on background checks and employee screening, see: Employment Screening Resources.

The author notes that in response to seeing an increase in claims of discrimination based upon criminal records and credit reports,  the EEOC started the E-RACE Initiative (Eradicating Racism And Colorism from Employment).  This brilliant article can be found at:

http://www.hrmorning.com/recruiting-eeoc-warns-about-background-checks/

As ESR has advised employer on a number of reason, the unfair use of credit reports or the automatic exclusion of individuals with criminal records without considering if there is a business justification are two huge vicinity of potential liability for employers.  The Safe Hiring Manuel, the first comprehensive book on background checks that was written by ESR goes into these issues in detail.  It can result in an action by the EEOC or a lawsuit for discrimination.  Needless to say, employers would rather not face either.  As noted in a recent ESR blog, the EEOC has brought a legal action against one national employer alleging the discriminatory use of credit reports and criminal records. http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records 

The one thing that small and standard businesses do not want to do is to use screening software that makes automated choice.  That is a huge risk taken for no excellent reason.  

To attempt to minimize exposure, employers may want review the following articles by ESR:

1. http://www.esrcheck.com/wordpress/815/basics-of-credit-reports-and-background-checks
2. http://www.esrcheck.com/wordpress/942/the-basics-of-criminal-records-searches

Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.   ESR has identified new trends that are starting to make a difference, as well as ancient trends that have evolved as the screening industry matures and as plaintiff’s attorneys, including class action lawyers, have started to focus on background checks.  

This is the first of the ten trends ESR will be tracking in 2010.  The ten trends will be released over the next three weeks::

1. Increased focus on whether credit reports and criminal records are discriminatory:  When the EEOC filed a lawsuit against a national employer in October 2009 alleging that credit reports and criminal records were being used to discriminate against members of protected groups, it did not come as much of a surprise to industry watchers.  (SeeESR blog at:  http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records )  There has been a steady drumbeat of concern about credit reports and criminal records.  Credit reports have come under rising criticism as reported in the media for being inherently unfair and potentially discriminatory.  California, for example, has twice passed laws that would have severely limited credit reports (although both were vetoed by the governor).   A bill has been introduced in Congress to amend the federal Honest Credit Reporting Act (FCRA) to outright prohibit the use of credit reports for employment, and it has 46 co-sponsors in the House of government.   In 2009, Hawaii passed a bill limiting credit reports.  (See past ESR blogs on the pros and cons of credit reports.)The use of criminal records is also being paid scrutinized. New York in 2009 passed new laws to ensure that employers were not automatically rejecting applicants with criminal records without considering the individual on his/her qualities.  In recent years, the Conference of Mayors has addressed the issue of criminal records baring ex-offenders from  being paid a second chance, and  the Disorder of Minnesota joined a number of large cities in adopting a “ban the box” deal with to governmental employment , meaning that questions about a past criminal record are not  requested initially on an employment application in order not to deter ex-offenders form even applying.  On one hand, without exercising due diligence, firms can sued for negligent hiring, suffer fiscal loss, and/or place public safety at risk if “red flags” are not located.  On the other hand, critics are concerned that with undue emphasis on credit reports or criminal records, people are being shut out of the workforce.  For instance, unless ex-offenders can get a job, there is a high likelihood of recidivism which means extra taxpayer dollars are being spent on prisons instead of schools or hospitals.  The bottom-line is that screening occurs at the intersection linking concerns over security and safety on one hand, and privacy and fairness on the other – and society is constantly defining the boundaries. Of course, it is fascinating to note that nearly every time a legislator stuff because there is too much screening, there is regularly a call by some other voted official for even extra screening after it is revealed that some crime or offenses occurred where an inappropriate applicant was hired without a sufficient background check.  A listing of proposed legislation related to screening shows that legislators are both calling for increased privacy and protections for consumers at the same time they are introducing bills to increase background check requirements.  This underscores the fact the screening occurs at the intersection where privacy and security concerns meet, and the lines are constantly being tested.

    One vicinity where employers need to review their practices is on using automated scoring matrixes where a candidate is given a green, orange, or red light.  That sort of automation where an individual is judged entirety by his/her membership in a particular category instead of his/her private abilities is precisely the type of process that is likely to get some unwarranted attention in the courts as a discriminatory practice.  This practice presents dangers  to large employers and small and standard enterprises certainly should not be engaging in automated choice making based on background checks.