The conundrum of background checks. A delicate balance.
Traditionally, the intended purpose of doing background checks has been to verify and/or find the information you may not know about someone’s past. Doing so enables you to become better informed about someone you are about to place your trust in. So far, sounds simple enough.
Enter lawmakers, regulatory governing bodies, consumers and simplicity becomes complexity.
Let’s examine the following hypothetical conundrum
Hannibal Cannibal is released from prison after serving 20 years. While in prison, he mastered the art of cooking and became a culinary expert. Fresh out of prison, he worked as a chef for someone who never bothered doing a background check. After seven years on the job, his former boss “disappears” and the place goes out of business. He now applies to work as a chef in your restaurant. While filling out your job application, he rightfully and legally answers “no” to the question “have you ever been convicted of a crime in the past seven years?” (update as of 01/01/2016: It may now be illegal to ask that question until after a job offer has been made. Check your state for “Ban the Box” laws).
Scenario #1: You follow up with a face-to-face interview and become impressed with his culinary skills. You contract a background check service to verify his past. Your jaw drops to the floor when you receive the background check report and learn about the nature of the crimes he committed in the past. Based on his past criminal background check, you decline to hire him. In conformance to your state’s law, he could sue and most likely win a settlement from either you or the background checks company, given the fact that the felony conviction was more than seven years ago. Bear in mind, he did not lie in his application and he proved to you he possessed the skills required for your job position.
Scenario #2: Better yet, the background checking company under pressure to comply with the federal and state laws and to avoid being taken to court, gives you a “No Records Found” response based on the seven-year criminal conviction threshold.
Scenario #3: After the background check showed “No Records Found” for the seven-year criminal conviction search, you happily hire this gastronomical artist. A week into the job, you find the frozen, strangled body of your dishwasher in your walk-in freezer. Within 10 days, CSI links your new chef’s DNA to the murder scene and subsequently, arrest him. The dishwasher’s family sues you for negligent hiring for putting your employee’s in harm’s way by hiring an ex-killer. Their attorney successfully presents the jury a convoluted defense that you did a minimal background check to save a few dollars, when in essence — you were complying with the FCRA and EEOC. They convince the jury, that had you spend an additional $10 to search past seven years for felonies of the violent kind, the dishwasher would still be alive today.
Although the hypothetical case described above borders on the extreme, it is totally possible under different variations applicable to every circumstance whereby a background check is warranted.
As a provider of background checks, we believe in redemption and giving others a second chance. Having said that, we are referring to limitations based on the nature of the crime and its relation to the employment position. However, a violent act against human life that has been proven in a court of law should be available for an employer’s review without any type of time limitations. It should be up to the employer to decide on a case-by-case basis without any government pressure. While there will always be lawmakers appeasing certain sectors of the masses in order to gain popularity among their constituents, we firmly believe in what is rightfully moral and logical.
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