One of the many “joys” of recruiting is after the resume screening and interviewing and you’ve “selected” the top 2 or 3 candidates….before an actual offer is made the company has some homework or due diligence to perform: good ole reference & background checks. There is no “law” that forces employers to perform reference checks, but there are many reasons why it is performed, such as:
- Negligent hiring lawsuits are on the rise. If an employee’s actions hurt someone, the employer may be liable if it can be proven the the employer “could have known” about the causes which made the actions of the employer hurt another employee.
- Child abuse and child abductions in the news in recent years have resulted in new laws in almost every state that require criminal background checks for anyone who works with children (even if the work only remotely involves children).
- Terrorist acts of September 11, 2001, have resulted in heightened security and identity-verification strategies by employers. Potential job candidates and long-time employees alike are being examined with a new eye following September 11, 2001.
- False or inflated information supplied by job applicants is frequent and the need to verify information supplied by the candidate is crucial before hire.
The federal Fair Credit Reporting Act (FCRA) is the actual law that sets national standards for employment screening (NOTE: the law only applies to background checks performed by an outside company, called a “consumer reporting agency” under the FCRA. The law does not apply in situations where the employer conducts background checks in-house). However, the Equal Employment Opportunity Commission (EEOC) says that a person cannot be denied employment based on a criminal record alone. Instead, the decision to hire or not must be based on a “business necessity”.
Now the Equal Employment Opportunity Commission (EEOC) will issue new guidelines (within the next year) that require empirical evidence for the “business necessity” defense in racial discrimination cases that arise from screening and hiring practices (see recent Workforce Online story for more details).
Currently, there is no empirical evidence that “proves” that hiring a person with a criminal record cannot perform a job similarly as a person who does not have a criminal record. In fact, many times if an employee is caught stealing or committing any other criminal act, the employer will dismiss (i.e. fire) the employee before pressing charges, so many times a criminal background check doesn’t even “catch” the type of applicants one is trying to catch.
Some employers (I tend to agree) that although background checks may be a necessary evil, doing proper reference checking with many people (i.e. work colleagues, supervisors and subordinates) is a better way to paint a picture of the applicant. It takes time, but in the end, you get a better result.