Employers Backtrack on Background Checks

New regulations on criminal background checks are raising questions among employers about the balance between a safe workplace and following the rules.

The practice of conducting criminal background checks is still common among U.S. employers, but the rate is dropping. Fourteen percent of employers polled by the Society for Human Resource Management (SHRM) do not conduct any criminal background checks on candidates, according to a Workforce report. That compares with 7 percent in 2010.

The SHRM study found complying with state laws and reducing legal liability for negligent hiring were the top reasons companies employ background checks.

“[Employers] are looking more closely at the job-relatedness of these practices,” said Mark Schmit, SHRM’s vice president of research. “As a result, fewer employers are using background checks, and checks are often done for specific jobs or to comply with the law.”

The Equal Opportunity Employment Commission (EEOC) seems to back this trend, according to recent guidance released by the agency. The EEOC recommends that companies skip the screenings unless they are relevant to the job and that HR and managers conduct “individualized” reviews of candidates with criminal backgrounds to avoid running afoul with Title VII, according to Human Resource Executive Online.

While those rules may lead to fewer but more targeted background checks, employers see a “Catch-22” scenario brewing, Gerald L. Maatman Jr. of law firm Seyfarth Shaw LLP told HREO.

“You either hire someone who could hurt your workforce, or you get in trouble for not complying with the EEOC mandate and EEOC enforcement,” Maatman said.

In addition to the safety fears, employers have to deal with the costs associated with “individualized” analysis of each job candidate with a criminal record, Mattman added.

“A lot of my clients are saying, ‘I could comply if I had buckets of money to spend to administer this,'” he said.

Some employers simply are refusing to comply with the rules, William Tate of HR Plus told HREO. But he cautions against this move, noting that there’s a way for employers to appease the EEOC and maintain a safe and productive workforce.

The costs to satisfy Title VII aren’t exorbitant, and the EEOC provides a good checklist that will help employers when making individualized assessments, Tate said. For compliance tips on this issue, visit:http://www.shrm.org/legalissues/federalresources/pages/eeocguidancecrime.aspx


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