specific guidelines for background checks

mamhradm · June 2003

We do criminal (not credit) background checks on all of our employees, but have never developed a specific list of when/how/why a background check would negate us hiring someone.

I know the guidelines: length of time factor, relationship of 'crime' to specific job position, misdemeanor vs. felony, etc. but would like to develop specific guidelines that would allow for some consistency.

Does anyone have a list they use when determining who would or would not be hired?

such as:

If case was filed ____ number of years ago, than not applicable.
If position is working with others and check determines they have a violent history ...

cthr · June 2003

We take on a case by case basis, unless they have a direct bearing on a particular position and even then we look at the circumstances surronding the crime. What type of industry are you in and what types of positions are you filling?

cthr · June 2003

We take each on a case by case basis, unless the crime was very recent, has a direct impact on the position or there are many convictions. What type of industry are you in and what types of positions are you filling?

mamhradm · June 2003

This would pertain to blue collar laborers (non-union). This area is relatively new to us, and I don't want to start a "back to work" program!!! Basically, some of the backgrounds look like problems just waiting to happen, and probably can't be discounted from a strictly legal standpoint (if it got that far).

cthr · June 2003

By not hiring just based on convictions, you could be discriminating against one or more protected classes. I would discuss this with your legal counsel before you make any decisions in this area.

mamhradm · June 2003

Has 'idiot' become a protected class? Sometimes I wonder why we bother with a background check. I do agree with you, and legal will review.

Don D · June 2003

Madman (ha): I don't know of a company that has a specific 'go to' sheet which lists the types of criminal histories that can finally be discounted and when and for what positions. Whatever your company policy turns out to be, it need not run scared of violating the rights of protected groups as far as my thinking. If your policy is not to hire persons convicted of two or more misdemeanors or one or more felonies for example, go with it. I have read tons of advice and opinion, on the Forum and elsewhere, about this subject, but have not seen any which tells me having a no-hire policy is illegal. I agree that it should be a case-by-case reasoned decision based on the circumstances, the total record, the [position and your consistency in prior practice.

cthr · June 2003

My comment regarding discrimination was geared as a response to the "i don't want to start a back to work program" and "some of these look like a problem waiting to happen". These comments lead me to believe that the poster doesn't want anyone who has a criminal background, regardless of the type of crime. Since minorities tend to have higher conviction rates, such a policy COULD be interpreted as discriminatory.

mjindra · June 2003

"Since minorities tend to have higher conviction rates, such a policy COULD be interpreted as discriminatory."

I completely don't agree with this. If you have a policy in place against convictions, it's not the fault of HR who falls into this category. We can go around second-guessing what our policy's look like or imply, but then when do we start making progress?

Nat · June 2003

We are required, because of our industry (long term care) to do criminal background checks on every applicant. We make our decisions on a case-by-case basis. If there are convictions that are related to what we do, i.e. larceny, assault, battery, etc. we look at the time between application and conviction. As Don said, I don't know of any companies that have a "go to" list.

mjindra · June 2003

I'm going to go one step further and say that if you have something documented, doesn't that limit you in more ways down the line? We make the hiring decision on a case-by-case basis also.

mamhradm · June 2003

Thank all of you for the input. A few observations: the great thing about HR is that you get to walk the fine line of 'negligent hiring' while not discriminating against convicted people with assault records; dealing on a case-by-case basis MAY sometimes be more discriminatory than having a defined set of guidelines and it is difficult to refer to consistency in prior practice if there has been no prior practice or precedence set.

Don D · June 2003

Do not give a second thought to the concept of 'disparate impact', in this case, if your policy or practice or industry standard is to not hire persons convicted of felonies or misdemeanors. 'Disparate impact' on a particular protected group might be a reasonable concern if your policy dealt with 'arrests' instead of convictions. But, even with an arrest or several accusations or suspected cases of abuse, absent a conviction, a facility such as yours is acting responsibly to NOT hire even those applicants in the interest of patient safety and opting for caution. There is not a court in the land, including California, that would find a long term residential care facility guilty of discrimination for not hiring any person who had ever in their lifetime been convicted of such crimes as assault, criminal neglect, patient abuse, theft, medical malpractice, non-feasance resulting in patient harm or record fraud - regardless of what the excel spreadsheet tells you about how all of the convicts stack up demographically. In fact, as you well know, state licensure policies and ongoing oversight by state regulatory and certification bodies expect that you do precisely that. Your real dilemma is if or when you let something 'roll off' in terms of how long it's been and it's relative importance and what is the risk of hiring a person who does have such a record. I would not recommend that an HR professional in a setting like yours EVER make such a determination alone and would recommend that the decision include at least two people a level above yourself, including the facility Director. Heads roll often and quickly in these types of scenarios.

cthr · June 2003

[font size="1" color="#FF0000"]LAST EDITED ON 06-20-03 AT 11:04AM (CST)[/font][p]While I agree with Don on the LTC facility issue, the original poster is hiring blue collar laborers. I know of no standard for that industry that requires you not hire someone who has been convicted of a crime.

Just picked up an article from the SHRM website regarding background checks:

4. Limits on Across the Board Convictions Bans
• Courts have found that a policy of automatically denying employment can result in discrimination against certain groups.
• Instead, employers must examine whether there is a sound business reason to not hire an individual with a criminal record, taking into account the nature of the offense, whether it is job-related, when it occurred and what the person has done since.
• Some states have laws prohibiting discrimination against people who have a criminal record. It's advisable to check with the state Department of Labor before securing the criminal record information.

specific guidelines for background checks

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