You’ve heard the phrase “What you don’t know can’t hurt you.” But sometimes what you do know can hurt you!
In the world of HR, we are very careful to behave in a manner that is not discriminatory, or even appears to be discriminatory. But what about your managers? The hiring process is full of opportunities for hiring managers to misstep. In the quest for “information” about a candidate, managers open the company to risks of allegations of discrimination.
While it’s prudent to do a criminal background check as part of your hiring process, care must be taken to ensure that it’s done at the right time, and in the right way.
3 Areas that Pose Potential Risk:
- Ban the Box: No, I’m not talking about keeping big retail stores out of small towns. I’m referring to the question on your job application asking if a person has been arrested or convicted. Many cities and states have Ban the Box legislation. Even if it is not legislated for your area, consider it a best practice worth following. First of all, that type of information should be held only by the HR person. If the hiring manager likes to see the application, now he or she has information that should have been restricted. Further, it’s far too early to be asking for this information. Timing is important, because your hiring decision should be made on factors such as skills and abilities. When you bring criminal history information into the process early, it’s easier for an applicant to claim discrimination. So take that question off your job application.
- CCAP - In Wisconsin, we have the online Circuit Court Access Program. A lot of employers / managers love to poke through CCAP, looking for interesting information. Some companies use it as their “background check.” This is problematic on a couple of levels. First, as in the Ban the Box section above, the hiring manager should not be looking at this information. They will be learning things about this person that they have no business knowing. For example, a person’s divorce, animal abuse, or a foreclosure on their record, how is that important for the company to know (assuming they are not applying for a financial related position)? If a company is going to use this as their background check, it should be done through HR. That way the manager won't see things not relevant to the job description. Second, recognize CCAP’s significant shortcomings: not all counties consistently report; it is Wisconsin court information only; and sometimes you will find several people with the same name, so it can be hard to ensure you are looking at the right person. If the HR person finds something in a CCAP search that is relevant to the position, she/he should be contacting the applicant for clarification.
Also Facebook - The reasons to stay off Facebook are really similar with CCAP. Facebook is a lot of personal information that a hiring manager really has no business knowing. And you can’t un-see something once you look. An applicant could claim that they were not hired because they posted something about the church they attend, the political party they favor, or the beer they drink. Hiring managers need to stay off Facebook.
- Pre-offer Background checks - Using a third party background check company is the best way to get the information you need. But do the background check at the right time. The EEOC recommends doing a background check only after making a contingent job offer. Does it slow down the process? Yes, but you want to be able to show that the hiring decision was made without consideration of the information from the background check. If you really have to do the background check before making an offer, have a set process in place, so you are consistent. For example, after the interviews, after the skill assessments (if you do them), after references, after you talk to the hiring manager about extending an offer, then you do the background check. It’s not the first step; it should be the last step. And be consistent. With every applicant that gets to that stage, do the background check. Don’t skip it for people who seem “honest.” And again, the results should go to HR, who will then assess relevance, and talk to the candidate about any areas of concern.
Investigating criminal history is an important part of the hiring process, but it needs to be done the right way. You want to protect your employees and your company, and you don’t want to spend a lot of money on background checks. But how much more money will you spend in a discrimination lawsuit? Protect your managers from the things they shouldn’t be seeing, and protect your company from risk.
MORE INFORMATION:
If you have questions about checking criminal history or how it may impact your business, please contact your Hausmann-Johnson Insurance partner.
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