Why Employers must now be more Careful about how they use Background Checks

Background checks can help recruiters make the right decision about potential candidates. Information from previous employers, from government agencies and from other information sources can help highlight areas that may be of concern. There are concerns, however, that background checks may be used inappropriately, and could highlight information that could be damaging to a candidate, particularly if he or she sits within a minority group. To address this concern, a new federal law was approved in the US on May 2, 2012, which sets out how employers can and cannot use background checks.

The rules were approved by the Equal Employment Opportunity Commission (EEOC). The EEOC is a government agency, which is responsible for enforcing laws that make it illegal to discriminate against a job applicant or employee. The EEOC has jurisdiction over most employers with 15 or more employees, as well as most labor unions and employment agencies. The EEOC’s authority covers any situation related to the field of employment, including hiring, training, wages and benefits.

The new rules focus on the use of background checks for individuals who may have a criminal history. This has remained a contentious issue for some time, as many employers may feel less inclined to recruit somebody with any kind of recorded felony. According to an article on the MSNBC website, the new rules target a number of key areas.

The EEOC is concerned about the focus placed on criminal record screening and employment discrimination, based on race and national origin. This follows a case taken against Pepsico’s Pepsi Beverages division, in which the company settled charges of discrimination related to the use of criminal background checks. The EEOC found that the practice targeted minority groups disproportionately and was therefore deemed to be illegal. The new rules prevent the use of background checks being used in this way.

The new rules highlight the differences between the way in which arrest records should be treated differently compared to those of an actual conviction. The guidelines state clearly that “arrests are not proof of criminal conduct” and make it clear that they may not be sufficient to exclude somebody.

The use of criminal background checks has increased significantly over recent years, with around 73 percent of US employers using them to screen candidates. The increased availability of data online has made the process far easier than it once was and means that the practice can easily be applied to all candidates, whereas previously it might have been reserved for certain, sensitive roles.

From an employer’s perspective, the new rules certainly don’t prevent the use of background checks, but they do make it clear that they can only be used in a certain way. Many individuals with a criminal history would argue that the current system is too punitive, and prevents any form of rehabilitation. Some recruiters are likely to be concerned that the move makes it harder to protect their businesses and clients. Nonetheless, the new guidelines make it clear that employers should only be using background checks when they can show they are “job-related and necessary”.