Many employers are not aware of this, but the EEOC is currently working on new guidelines regarding the use of background checks in hiring decisions. Also, there is pending action on both the legislative agenda as well as legal field to prohibit the use of credit checks in hiring processes. Within 18 months the EEOC is expected to upend current hiring practices and require companies to provide empirical evidence for the business necessity of such things as driving record, criminal record, and credit check

This means that HR people will be required to provide data that shows correlations that people with a prior criminal record are more likely to commit work place crimes compared to the general population. The EEOC already has studies that show no correlation between a prior criminal record and the possibility of committing a future crime. To take this one step further, companies may no longer be able to have a “no felon” policy regarding hiring, and therefore cannot ask the question on job applications.

According to the Certified Fraud Examiners, most fraud perpetrators  do not have a criminal record because they are first offenders. In addition, many companies just fire an employee for theft and do not file charges. Our church discovered that an employee was embezzling money. In exchange for full restitution of the embezzled funds, we agreed not a prosecute. Both the police and district attorney encouraged this course of action. We found that this is the norm is most small embezzlement cases.

Another fact working against companies in being able to continue using background checks in employment decisions is that the probability of a person becoming a repeat offender drops to extremely low levels if the person has a stable job during their first year out of prison. Employers that construct hiring barriers for marginal, non-violent offenders will have a difficult time justifying barring employment based on a felony conviction alone. 

While background checks probably will not be totally eliminated, they will need to be specific and tied directly to a work place need. For instance, a child care facility will be able to eliminate sex offenders from consideration, but other felony convictions may not be relevant. Or a bank may be able to exclude someone from being a bank teller if they have been convicted of embezzlement.

So how will companies protect themselves if they cannot use background checks?  This is going to be a two pronged approach. One is to do all you can legally before the hire to find out as much as possible about candidates and their suitability for a job. The EEOC allows the use of job-related assessments that have been validated in the selection process. While psychological assessments are prohibited because of ADA (mental illness is considered a disability under ADA), assessments which measure behavioral style, motivators, and thinking patterns are fully legal and can be used to screen candidates. There has been never been a successful court challenge to the use of assessments. In fact the EEOC prefers the use of assessments over interviews since they are objective and non-discriminatory.

The other key pre-employment way to make better decisions is to have skilled interviewers who know how to ask questions that provide good insights into candidates and are legal. Too many organizations involve people in the process who have no training in interviewing. The result is highly subjective and in most cases, irrelevant information for the hiring decision.

During the hiring process, people should be fully aware of company polices relative to drug testing, theft, or any other criminal behavior, Drug testing, both random, as well as for specific incidents is legal. If applicants know that a company does frequent, random drug testing, those who have drug problems are much less likely to apply. Companies, like retailers, who make it known that they prosecute any employee theft are more likely to discourage potential criminals from applying.

Once a person is hired, then it becomes incumbent of the company to have good polices and procedures in place to minimize the possibility of criminal behavior in the work place. A drug testing policy is essential.

Controls around the handling of money need to be tight and subject to very sound principles of financial control. Spending money to have an outside audit firm come in and review all company practices and policies can be a very good investment.

If employee theft is a concern, then polices and practices relative to random searches may be needed. Access to the facility needs to be limited and under the watch of a security person, both to prevent theft as well as unauthorized access to a facility. Most companies require some form of ID or badge to enter a facility. Terminated employees should be required to turn in any company ID as soon as employment is terminated.

When you read about most work place violence incidents, there were usually warning signs about the person ahead of time. And most had no prior history of violence. All supervisors and managers should be attentive to irrational or unusual behavior on the part of any employee.

Even without the ability to do background checks (which probably don’t help anyway), there are a lot things that a company can do to protect itself from criminal activity.