For those charged with implementing a security program, engaged in risk management and loss prevention, and for HR departments struggling with how, what and when is it legal to ask candidates about their past, the fog is not lifting -- it's getting thicker. So what is an employer to do?
For starters, employers need to document their background screening processes and become familiar with which state and local restrictions are applicable in their jurisdiction. A background screening policy should be job-specific so the employer can demonstrate job relatedness. The risk posed by the ex-offender is going to be evaluated in the context of a specific job, and whether disqualification was based on a business necessity. The EEOC guidelines may be incorporated into the written policy, and consider auditing pools of applicants and new hires for disparate impact.
The 383 employees at the EEOC in 2010 were likely hired subject to a background check and were probably asked about their criminal past -- and rightly so. But as 2011 progresses, more restrictions and enforcement actions are likely in store for private employers. More states will consider restrictions on the use of credit, and other jurisdictions will enact rules to help ex-offenders -- regulations that could have an unintended chilling effect on an employer's ability to protect its workforce. Until the courts rule in some of the pending systemic cases, the risk management, security and HR communities need to audit their policies and practices, get the best advice they can afford, and stay tuned for what comes next.
About the author: Angela Bosworth, Esq., is the executive vice president for OPENonline, a national provider of background checks. Bosworth brings 20 years as a licensed attorney and over 10 years of experience in the background screening industry to her position at OPENonline. Her extensive experience in the background screening industry includes governmental affairs, compliance best practices, and policy initiatives. She is a frequent speaker on the legal compliance issues associated with background screening, privacy and security, and hiring. She is a co-author of the "Pre-employment Background Screening Guideline" published by ASIS International, is actively involved in the National Association of Professional Background Screeners (NAPBS) and the Society for Human Resource Management (SHRM), ASIS International, and is a member of the Ohio State and Columbus Bar Associations.