It is expected that later this year, the EEOC will issue tighter, “evidence-based” guidelines on background checks for new hires. In addition, the Supreme Court will be hearing an important case involving NASA’s background screening practices, which could have an enormous impact on the practice going forward.
Workforce Management recently addressed the issue of EEOC’s anticipated evidence-based in a special report entitled “Burden of Proof.” (free registration required) We asked our partner, Backgrounds Online to comment on this issue:
According to the recent article “Burden of Proof” in Workforce Management, the United States Equal Employment Opportunity Commission (EEOC) has recently announced plans to issue new guidelines when it comes to pre-employment screening over the next 12 to 18 months. The new guidelines will reportedly require “empirical evidence” that background checks help keep the workplace safe. Empirical evidence is defined as “originating in or based on observation or experience.”
The article focused on the seemingly lack of statistics to back up the need for and benefits of background checks. The author made a point of stating that the National Association of Professional Background Screeners (NAPBS), which is the background check industry’s trade group, has not conducted studies into empirical evidence. However, the author neglected to mention that there have been several studies and points that have been done. For example:
- One report by the Association of Certified Fraud Examiners found that the median loss for small firms with fewer than one hundred employees was $190,000.
- The Society for Human Resource Management says that 70% of all job applications provide information that is not fully accurate. )
- The average jury award for negligent hiring against a company was $870,390 in 2000, according to Barry J. Nadell, former president of InfoLink Screening Services, in Chatsworth, California.
No reputable background check company can tout that running background checks on potential employees will protect a company from every foreseeable pitfall or danger when it comes to hiring. But those few points and statistics highlighted above can’t help but show that the benefits outweigh neglecting background checks completely.
The article also cited one staffing firm as using a blanket “no felons” policy, a policy that could be considered antiquated. The EEOC currently discourages this type of policy and their guidelines are, in fact, very workable as they require an employer to consider the nature of the offense in relation to the position being sought. Some states are even following suit with that line of thinking. For example, New York recently passed a law which prohibits employers from taking adverse action against an applicant if their charge doesn’t apply to the position.
No matter the change in EEOC guidelines, we believe that they would be hard-pressed to put the “burden of proof” solely on an employer as the Workforce Management is implying. Hire a reputable background check company and good legal counsel to consult with and you should be able to avoid any issues with the EEOC and background checks.
As this issue develops, we’ll continue to check in with Backgrounds Online. Meanwhile, here are some other recent articles and opinions on this issue:
- Federal Lawmakers, Enforcers Set Sights on Background Screening
, Roy Maurer, writing for SHRM, offers an overview of the issues along with some take-aways for HR - Making a Case For Hiring Bars. Fay Hansen of Workforce Management checks in with employment law attorneys.
- Applicant Background Checks- How much is too much? (PDF) – Diane Krebs, partner at Gordon & Rees in the New York office, discusses EEOC and New York state guidelines in an article in the New York Law Journal.