Background Checks: Being part of the solution while balancing risks
Posted: 12:47 pm Mon, December 10, 2012
By Mark Haase
Pressure has been building for Employers in Minnesota and across the country to scrutinize and reform their criminal background check policies. Examples include the Equal Employment Opportunity Commission’s newly issued guidance on consideration of criminal records, stepped-up enforcement of Title VII claims as exemplified by the Pepsi Beverages $3.1 million settlement obtained by the E.E.O.C. here in Minnesota earlier this year, and policy reform efforts like the legislation introduced in Minnesota that would require private employers to wait until the interview phase before inquiring about criminal records.
This pressure for reform is in response to major changes in our criminal justice system and its consequences over recent decades. Our state and country now convict people of crimes at rates over three times what they were 30 years ago — an estimated one in five Americans has some form of a criminal record that may appear in a criminal background check, and Minnesota has the eighth highest percentage of its population currently under some type of correctional control. Access to and use of records of contact with the criminal justice system has also greatly increased, and with new sources and methods of electronic storage and access, those records follow people indefinitely. There are also now thousands of prohibitions for people with criminal records in licensing, employment, housing and education that exist in both state and federal law, and an increased reluctance of private entities to open employment and housing opportunities. And while these trends impact every community, they disproportionately affect communities of color, communities which also experience disparities in education, housing, and employment resources and opportunities. The combination of these trends has created a situation where a large proportion of our neighbors are unable to support themselves and their families and contribute to their full potential. It unnecessarily limits the potential of our state’s workforce, weakens our communities and actually harms long-term public safety.
Of course this situation is not solely the fault or responsibility of employers, but employers can help to alleviate it by adjusting their background check policies. However, employers interested in helping may wonder about the other side of the risk-assessment equation: protecting themselves from potential negligent hiring lawsuits when hiring someone with a criminal background.
Liability in this area is really fairly limited, and it has been further narrowed and clarified by Minnesota’s negligent hiring liability statute, Minn. Stat. 181.981. Despite its low profile, it is one of the strongest hiring liability protection statutes in the country. Developed in collaboration with the Minnesota Chamber of Commerce, the law was enacted by Gov. Tim Pawlenty in 2009. In summary, it establishes that information regarding a criminal history record may not be introduced as evidence in a civil action if: (1) the duties of the position of employment did not expose others to a greater degree of risk than that created by the employee or former employee interacting with the public outside of the duties of the position or that might be created by being employed in general; (2) before the occurrence of the act giving rise to the civil action, a court order sealed any record of the criminal case or the employee or former employee received a pardon; or (3) the record is of an arrest or charge that did not result in a criminal conviction.
By using this statute as a tool and guide, as well as practices recommended by the EEOC, employers can develop criminal background check polices that not only give them discretion in their own hiring decisions and help their own bottom line but also contribute to solving a problem that greatly impacts the communities where they do business. Developing a background-check policy that takes all of these issues into account may seem complicated and burdensome, but a model policy is really fairly simple and efficient when broken down into the following components.
1. Do not ask about criminal records at the point of application. This allows applicants to be initially evaluated based upon all of their skills and qualifications rather than weeded out only by information that may be inaccurate, outdated, confusing or irrelevant. If a background check might be conducted, ask for permission to conduct a criminal background check at the time of application and provide notice that a criminal background may be conducted at a later step in the hiring process and may be grounds for disqualification. Doing this at the time of application will save a step later and allows for a background check at a later point in the hiring process in accordance with Fair Credit Reporting Act requirements.
2. Do not consider nonconviction records or expunged/pardoned cases.
As noted above, Minn. Stat. 181.981 protects employers from liability based upon records that did not ultimately lead to criminal conviction (this includes arrests, dismissals, diversion and stays of adjudication, juvenile adjudications, and petty misdemeanors), or any record of the case was expunged, or they were pardoned. Additionally, disqualification for nonconviction records could be grounds for a Title VII action.
3. Develop structured but not overly restrictive disqualification guidelines. Some positions may not require any background check at all. Minn. Stat. 181.981 protects employers when a position does not place others at any greater risk than that created by the individual being employed generally or not being incarcerated. For other positions, when there is a potential financial or other risk, listing specific time frames for specific crimes and levels of offenses and positions is not realistic and can be overly restrictive, and giving hiring managers complete discretion to do a case by case analysis is not prudent.
This is probably the most difficult part of the process for employers to navigate. I recommend creating guidelines that link job responsibilities to broad categories of crimes, with presumptive disqualification periods and checks in the decision-making process.
For example, if a job involves financial or unsupervised property handling responsibilities, fraud or theft related convictions less than a reasonable, established number of years old might carry a presumption of disqualification. The presumption could be overcome if recommended by the hiring manager and approved by human resources with evidence of sufficient rehabilitation and fitness to perform the duties of the position. Older relevant convictions would be presumed non-disqualifying unless human resource staff identifies them as directly related to the particular position and of such a level or nature as to warrant disqualification. Finally, applicants should always be given the opportunity to identify inaccuracies in the criminal record.
When employers adopt these policies they benefit by making better decisions about hiring, and opening their hiring process to a larger, potentially more qualified, pool of applicants. People benefit by being evaluated on their skills and qualifications and their current readiness to work, not just their past. Minnesota will benefit by developing a workforce that is employed to its full potential, both now and into the future when the demand for trained and skilled employees will increase, and by giving those who have offended greater opportunity to become responsible and tax-paying community members.
Mark Haase is a licensed attorney and is the Vice President of the Council on Crime and Justice, a Minneapolis-based organization that has been building community capacity to address the causes and consequences of crime since 1957.