More Employers Letting Candidates Explain Conviction Records

Use of individualized assessments was stressed in EEOC’s 2012 guidance

By Roy Maurer May 15, 2015

Almost three-quarters (72 percent) of employers perform individualized assessments for candidates who have conviction records—up from 64 percent in 2014—giving those applicants a chance to explain the circumstances of their convictions, according to a new survey.

This is the highest percentage since the Equal Employment Opportunity Commission (EEOC) released guidance on employers’ use of criminal records in 2012.

That’s one of the key findings from background screening provider EmployeeScreenIQ’s survey of 500 U.S.-based employers regarding their use of employment background checks.

“Employers who do not perform individualized assessments may not be violating the letter of the law, but they are at risk for claims of discrimination under Title VII of the Civil Rights Act according to the EEOC’s guidance on this matter,” said Nick Fishman, executive vice president at EmployeeScreenIQ. “This is a fairly strong indication that the EEOC’s guidance continues to have a growing impact on employers’ hiring practices.”

Only 21 percent of respondents said they disqualify candidates due to criminal records more than 20 percent of the time. The remaining 79 percent disqualify candidates because of criminal records far less frequently or not at all, according to survey results. In fact, the percentage of respondents who said they disqualify applicants more than 20 percent of the time fell from 32 percent in 2014, the largest variation in any category year over year.

“Employers continue to consider other factors such as the severity of the crimes, whether the crimes are related to the jobs being sought, the amount of time since the conviction and whether the candidate is a repeat offender,” Fishman said. “Indeed, the EEOC recommends that employers use all of these criteria when making hiring decisions,” he added.

The survey did find that background checks are being used to vet applicants: 90 percent of respondents said background checks have uncovered information that convinced them not to hire candidates—“firmly fulfilling their purpose of helping employers reduce risk to their organizations and protect their employees, clients and customers,” Fishman said.

The great majority of surveyed employers expressed concern over felony convictions related to crimes of violence (93 percent) and theft and dishonesty (90 percent), followed by drug offenses (70 percent) and various misdemeanors and driving infractions. “Employers’ general concern over incidents of workplace violence, employee theft and negligent-hiring lawsuits all continue to rise,” Fishman said. “And their concern continues to ebb in relation to minor drug offenses, driving infractions and charges that don’t result in convictions.”

The number of employers asking candidates to divulge their criminal history on job applications dropped in this year’s survey to 53 percent vs. 66 percent in 2014. However, three-quarters of respondents still ask candidates to divulge their criminal history at some point during the hiring process. For the remainder that don’t, “this can be a risky proposition as employers are held to the legal standard ‘If they could have known, they should have known,’ which can result in potential negligent-hiring issues,” Fishman said.

Other findings include:

  • Protecting clients and customers is the No. 1 reason employers conduct background checks (46 percent), followed by workplace safety (16 percent) and identifying the best candidates (15 percent).
  • Employers find “ban-the-box” laws preventing employers from asking about prior criminal history on job applications unfair (48 percent), confusing (26 percent) and an unnecessary delay in their hiring processes (25 percent).
  • Almost half of employers (44 percent) said they would flatly reject candidates who did not divulge past convictions on their job applications if those convictions were then revealed during a background check, while almost as many (39 percent) said they would give candidates an opportunity to explain the convictions.

Compliance Tops Screening Challenges

When asked to rank the screening challenges their companies will face this year in order of importance, compliance surpassed every other response by a wide margin as the single most important challenge: 51 percent cited compliance, followed by 14 percent who said ensuring use of the most comprehensive criminal record search and 11 percent who responded improving the candidate experience.

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy



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