National News
The Background Bar Is Rising
February 03, 2017 posted by Steve Brownstein
One of the toughest things in HR is only getting tougher. Changing rules and growing risks mean employers must work harder to keep up with rising standards for pre-employment criminal-record checks, experts say.
"My suspicion is that many employers are behind the curve on this," says Charles C. Jackson, a lawyer with Morgan, Lewis & Bockius in Chicago. "This issue is not going away. It's going to become more prominent over time."
Pre-employment criminal-background checks have become common as companies seek to improve the quality of their workforces and reduce the risk of negligent-hiring lawsuits.
If there's an incident of workplace violence, for example, the public will say "Well, a simple Google search would have told you there was a risk," says Pamela Q. Devata, an employment lawyer and partner with Seyfarth Shaw in Chicago. "Companies feel a tremendous need to make sure they have a workplace that's safe -- not just for employees, but for customers."
But getting and using those records also brings legal risks that continue to grow. Federal, state and local regulations create a thicket of protections for job applicants, including a rising number of "ban-the-box" laws. A thriving social and political movement to help people with criminal records find work also puts pressure on companies.
"Employers are really between a rock and a hard place when it comes to background checks," says Rod M. Fliegel, a shareholder with Littler Mendelson in San Francisco who specializes in background-check issues. "Calibrating the balance is challenging."
One important trend, experts say, finds employers moving away from fixed rules on what kinds of convictions bar workers from certain jobs. It's becoming more common for HR departments instead to individually assess otherwise-qualified applicants with criminal records. Federal regulators are pushing companies in this direction, both to help people with criminal records get work and to minimize potentially discriminatory effects of blanket policies.
Jackson sees two advantages to these admittedly labor-intensive assessments, where business conditions permit: "One, all things being equal, I think you'll get a better decision," he says. "And you may reduce your susceptibility to a class action" at the same time.
