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Should Employers Use Arrest and Conviction Records of Job Applicants for Hiring Decisions or Do Criminal Background Checks Discriminate against Ex-Offenders?

Lester S. Rosen

Les Rosen employment screening background checks On July 26, 2011, the U.S. Equal Employment Opportunity Commission (EEOC), the Government agency that enforces federal laws prohibiting employment discrimination,held a meeting that examined the use of arrest and conviction records of jobseekers by employers and how criminal background checks could be a discriminatory hiring barrier.

At the meeting, the EEOC was told that employers refusing to hire people with arrest and conviction records even years after they had completed their sentences may cause recidivism and higher social services costs. Some commented that removing arbitrary bars to hiring people with arrest and conviction records improves job availability and lowers crime and social costs, and also urged employers to develop and implement a “responsible business plan” and overcome “fears, biases and hiring challenges” in order to facilitate hiring people with criminal records.

However, the EEOC was also informed that businesses face confusing and conflicting laws when using sometimes unreliable arrest and conviction records from databases while making employment decisions.

The EEOC held open the July 26 meeting record for 15 days and invited members of the public to submit written comments on any issue or matters discussed at the meeting. As CEO of a background check company that performs criminal background checks for employment purposes, I submitted a letter for public comment on the EEOC July 26 meeting on the issue of ‘Arrest and Conviction Records as a Hiring Barrier’ because, in reviewing some of the comments and testimony from the hearing, it appears there are some important considerations that the EEOC should consider that may not have been sufficiently addressed at the meeting.

In my letter to the EEOC, I described how the rights of ex-offenders to a second chance must be balanced with the rights of employees to have a safe workplace: “Of course, the pre-employment screening industry recognizes that unless ex-offenders receive a second chance, we stand the risk as a society of creating a class of permanently unemployed and employable individuals. The results are not only devastating to the ex-offenders and their families, but it also places a substantial strain on societal resources. However, it is just as important to understand that innocent people have the right to be safe in their workplaces and everyday lives.”

I also wrote that the use of criminal records is a difficult issue because it involves important American values that can seem to conflict. “On one hand, we value public safety and a safe workspace with honest and qualified employees. All Americans have a right to be safe and secure in their workplace. On the other hand, as a society we believe in second chances, and that a person’s past should not hold him or her back forever, particularly for more minor offenses. The issue is how to draw lines that both protect innocent people and, at the same time, does not burden the taxpayers by creating a permanent class of unemployed people. Unless an ex-offender can get a job, they cannot become a taxpaying and law abiding citizen and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance.”

In seeking to balance these competing interests, I hope that the EEOC will recognize that there are some “real world” issues that need to be considered that include:

Employers face significant risk if a person that is dangerous, unfit, unqualified or dishonest is hired.

A professional background screening firm – also known as a Consumer Reporting Agency or CRA – operating under the federal Fair Credit Reporting Act (FCRA) is an entirely different industry than the cheap and instant online database searches that can result in inaccurate data. A CRA preforms screenings under the strict standards of the FCRA based upon the applicant’s written consent, as opposed to data aggregators that sell data to anyone with a credit card.

Background screening firms are NOT the employment police, but professionals that gather relevant information so employers can make intelligent decisions. Background check reports provided by a Consumer Reporting Agency protects both employers and job applicants by providing employers with reports with much greater accuracy that filter out information that cannot be used, and providing job applicants with an immediate avenue to contest any information in the report.

The background screening industry as a whole has been the primary reason why employers have become aware of the EEOC position on the overly board or automatic use of criminal records, since background screening firms deal with a high percentage of U.S. employers and typically include client education on how to properly consider the use of criminal records.

The issue of inaccurate records comes primarily from the data aggregator firms. A simple solution is to require any employer to only utilize information that has been confirmed as accurate and up to date from a primary source, such as a courthouse search.

Over 140 background screening firms have joined an industry group called “ConcernedCRAs” (http://www.concernedcras.com/) that opposes the use of databases provided by data aggregators for employment purposes, without first reconfirming that the information is currently complete, accurate and up-to-date.

Following a more detailed discussion of these issues, I summarized that the EEOC should undertake a fair and well-reasoned evaluation of all the issues: “It is certainly critically important to our society that everyone have a second chance. However, citizens also have a right to be free of violence and fraud in their everyday dealing, either as a member of the public, an employee or employer. In reaching these difficult decisions, it is critical that the EEOC have a full understanding of all of the facts that surround background checks and criminal records.”

My letter of public comment to the July 26 EEOC meeting is available on the ‘EEOC and the Use of Criminal Records for Employment’ page on the Employment Screening Resources (ESR) website at: http://www.esrcheck.com/EEOC-and-the-Use-of-Criminal-Records-for-Employment.php.

More information about the July 26th meeting on ‘Arrest and Conviction Records as a Hiring Barrier’ may be found on the EEOC website at: http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm.

BIOGRAPHY

Lester S. Rosen is an attorney at law and president of Employment Screening Resources (ESR) , a national background screening firm headquartered in Novato, CA. See; www.ESRcheck.com

He has authored two books on screening and hiring: “The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and “The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program."

He is considered an expert in employment screening background checks, and is a speaker frequently at nationwide human resources, fraud and security conferences. >>>

He has testified as an expert on employment screening background checks in negligent hiring cases in California, Florida and Arkansas.

He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair.

Mr. Rosen graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis School of Law, serving on the school Law Review. While practicing law, he specialized in criminal law and his practice has included federal crimes and death penalty cases. He holds the highest attorney rating of A.V. in Martindale-Hubbell. He has served as an adjunct professor of law teaching criminal law and procedure at Hastings College of the Law, and served as faculty member and program chairman of the Hastings College of Trial Advocacy in San Francisco.

He has also been active in working on legislation in California. In 2002, he worked with the California legislature to amend AB 655, a law that adversely affected employers in the area of reference checks and hiring in California. He continues to be involved in working on California legislation effecting employers.