Companies that fail to keep a close eye on legal developments regarding pre-hire screening put themselves at risk of costly litigation. As every attorney expert in employment law can tell you, pre-employment background check processes are not the sort of thing you want to “set and forget.” A strong, easily defended pre-hire screening process should be consistently updated to reflect the latest EEOC and FCRA rulings. Moreover, states and cities consistently pass new laws about how employers can conduct pre-employment background checks. To protect your business, it’s important to track pre-hire screening news and adjust your methodology accordingly.
Below, we list some of the developments pre-hire screening experts predict for 2012:
1. Increased scrutiny of criminal background checks by the EEOC.
The Equal Employment Opportunity Commission (EEOC) was formed under a mandate in the 1964 Civil Rights Act. The EEOC’s main role is to enforce workplace anti-discrimination laws. Employers may not discriminate based on sex, gender, religion, race and age. Recently, however, the EEOC has been more critical of companies that reject applicants based on criminal background checks. Last July, the EEOC held a public meeting on whether considering conviction and arrest records in pre-employment background checks constitutes discrimination against ex-offenders.
There is some public support for this movement, as well. The “Ban the Box” campaign urges the prohibition of criminal history questions on job applications for public positions. Overall, it appears this year will see more challenges to pre-hire screening procedures that involve criminal background checks.
2. More state laws limiting credit reporting in pre-employment background checks.
A 2010 survey from the Society for Human Resources Management (SHRM) found that 13 percent of businesses check the credit score for all job candidates, while 47 percent order credit reporting for some applicants as part of their pre-employment background check process. Yet this practice is also facing increased scrutiny from the EEOC – and some states already ban it.
Oregon, for instance, passed a law in February 2010 forbidding employers from making employment-related decisions based on credit histories. (Some positions are exempt from this rule, including bankers and law enforcement professionals.) California, Connecticut, Hawaii, Illinois, Maryland and Washington state also have laws on the books restricting the use of credit histories in pre-employment background checks. Plus, at least 31 American cities have similar legislation. Don’t be surprised if more states and cities follow suit in 2012.
3. More employers incorporate social media analysis in pre-hire screening.
More and more businesses are checking applicants’ social media profiles as a part of their pre-employment background check methodology. Facebook, LinkedIn, Twitter and other social networking sites are like a double-edged sword for employers. On the one hand, such sites often include so much information that companies could be accused of negligent hiring if they don’t at least check out publicly available profiles. On the other hand, social media screening is becoming more and more controversial.
Some states are in the process of limiting this type of pre-employment background check. Maryland, for instance, requires only the governor’s signature to sign into law legislation banning employers from asking applicants for social media login information. (This is the most extreme variety of pre-hire social media screening; if profiles are not available publicly, some private companies are asking candidates to provide login information.) In 2012, expect more states to restrict the use of social media in pre-hire screening.
4. Pre-employment background checks become more automated.
In the early days of pre-hire screening, private detectives investigated lives in person. Scotsman Allan Pinkerton may have been the first to conduct pre-hire screening investigations through his company, the Pinkerton National Detective Agency. Pinkerton established many of the detective techniques we’re familiar with today, including shadowing persons of interest.
My, how things have changed since then! Today, it’s rare for pre-hire screening agencies to conduct investigations in person. Instead, they’re more and more frequently turning to automated process to conduct their investigations. This tendency has certainly boosted the efficiency of running pre-employment background checks, but it has also resulted in more inconsistencies and inaccuracies in pre-hire screening reports.
If you’re looking for a knowledgeable, law-abiding, effective way to conduct your pre-employment background checks, it’s best to avoid “quick fix” solutions via smart phone or automated websites online. Instead, consider partnering with a pre-hire screening expert who has a proven history of providing top-notch pre-employment background checks.