Learn from the experts with the American Society for Industrial Security’s Preemployment Background Screening Guideline.  Created by renowned industry specialists (including CIC’s President, Steve Cotner), the guide will help you create a screening program from scratch, or tweak the standards you already have toward the highest level of compliance.  Use this invaluable resource to safeguard your business, your employees and your customers. Click here now!

Welcome to the premiere issue of CIC’s monthly newsletter!  In it you will discover timely topics, interesting news, and helpful tips to make your job a little easier.  We hope you’ll find the newsletter to be a valuable resource full of great insight and useful information.

Of course you’re concerned about hiring the right person for the job.  We all are.  You’ve done your homework and polished your recruiting skills.  You put the right incentives in place to attract the kind of people you’re looking for. You’ve developed a sound program for interviewing and testing and pre-screening applicants in an effort to limit potential liability for negligent hiring.  You are the model employer of Due Diligence.

Then it happens.  Your favored applicant has a criminal record that appears on his background check.  What do you do now?

First of all, remind yourself that the criminal history of each applicant must be looked at individually.  You cannot say “no one with a felony works here” without violating Title VII – The Equal Employment Opportunity law.  The EEOC calls this “automatic disqualification” and is dead set against it.  Here’s why:

“(a)n 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.”

The Commission goes on to state that holding such a policy is unlawful in the absence of business necessity.  Ok, so how do you define what is business necessity and what is not?  To each his own, right?  Not quite.  The EEOC offers this formula for determining a justifiable business necessity:

1. The nature and gravity of the offense or offenses
2. The time that has passed since the conviction and/or completion of the sentence, and:
3. The nature of the job held or sought.

Based on these criteria, the concern would be greater in hiring a repairman going into customer’s homes with an assault conviction 3 years ago, than hiring a secretary with a DUI who won’t ever drive a company vehicle.

Again, each applicant must be given individual consideration.  The best way to facilitate this is to have a policy reflective of this procedure.  State that in an effort to promote a safe working environment you will strictly scrutinize any criminal record, without automatic disqualification.  If you do make the decision to hire an individual with a criminal record, it is very important to document the reasons for this decision.  This will go a long way in helping you should a law suit be later brought against your company.

The next thing to remember is that dishonesty is always a legitimate reason for disqualification.  What type of question do you ask of your applicants with regards to their criminal history on your employment application?  Do you ask about felonies only?  Do you ask them to determine the gravity of their offenses such as the phrase “…anything other than minor traffic offenses?” Do you put time parameters on such as “…in the last 7 years?”  Wording this question properly can be an invaluable tool for employers.  The question: “Have you ever been convicted of or pled no contest to a crime” affords the employer an opportunity for open discussion about an applicants criminal past.  It also gives the applicant an opportunity for honesty and further explanation.  If the question is asked as suggested and the applicant checks “no”, but a criminal record is found, then you as the employer have a right to disqualify the applicant based on the dishonesty alone.  There is no need at that point to look at the EEOC’s formula.

One last reminder: you’re not alone when making decisions regarding an applicant’s criminal history.  You can and should rely on your legal counsel as well as the expertise of your screening firm when outsourcing.  So relax, you’re still the model of Due Diligence.

Pamela Rodriguez is a Pre-Employment Coordinator for CIC. For comments or questions about this article you can contact her at 419-874-2201 ext. 16; prodriguez@corpintel.com

Meet Steve Cotner, President and Co-Founder of Corporate Intelligence Consultants, Inc.

Steve began his career in the 70's as an undercover narcotics investigator working in both the public and private sectors. Today, Steve continues to be a hands-on investigator while also juggling the responsibilities of running the successful company he started with his father in 1977. CIC can contribute much of its success to Steve's dedication, extensive training and community involvement.

Steve serves as a board member of the Perrysburg YMCA, is a member of the Perrysburg Rotary, the University of Toledo Family Business Center and the Ohio Association of Security and Investigation Services. Nationally he works with the American Society for Industrial Security and the National Association of Professional Background Screeners (NAPBS).

Steve's enthusiasm and passion for what he does is infectious and shows in the quality of his work.

Did you know having job descriptions in place is essential in providing legal protection against claims of discrimination or compliance with the ADA?  Having clear definitions of the core responsibilities in a particular position will not only help you screen out less qualified applicants, but it will also ensure your consistency with EEOC requirements.