The Lowdown on Minor Criminal Infractions and Background Checks

A common question employers ask about background screening is: “Will minor criminal infractions be found in the results of a background check, and if found, how should they impact our hiring decision?”

It’s a good two-part question.

The short answer to the first part of the question is minor criminal infractions generally will show up when screening companies conduct a county criminal record search, but this isn’t a hard and fast rule. To show you how this all can work, I’ll use minor marijuana possession convictions as an example. Then I’ll address the second part of the question, how minor criminal infractions should—or shouldn’t—impact the hiring decision.

Where Are These Records Found?

The best method to identify convictions for marijuana possession is no different than that which you would use to find any criminal record; simply search the county court(s) where a person has lived, worked or attended school.

Why Wouldn’t a Possession Conviction Show Up? 

There are a few reasons why a marijuana possession might not show up. If the record is treated as a minor infraction and is dealt with administratively by a local court, chances are, that record will not appear on a typical Felony/Misdemeanor criminal background check.

Beyond that, many courts around the country allow low-level convictions such as marijuana possession to be sealed or expunged if the person meets certain conditions. If this happens properly, the record is effectively erased from the court’s searchable public records and cannot be found.

There are also some areas where low-level marijuana offenses cannot, by law, be reported. If you are conducting background checks in California, for instance, you cannot use these types of records to deny employment if the person was entered into a post-trial diversion program.

Don’t Forget About Door #3

There is another possibility employers should consider if a minor possession charge is revealed on a National Criminal Database search. Remember, that such databases are fraught with holes and often incomplete. Regardless of the record found on a national search, it should always be verified in the jurisdiction where the record originated. This is especially true with minor convictions where there is a possibility that the record was expunged or sealed. If the national database isn’t regularly updated, there is a good chance that that the conviction wouldn’t have been removed from the database’s records.

How Should Minor Criminal Convictions Impact Hiring Decisions?

Unfortunately, there’s never a good answer to this, the second part of the question employers so often ask about minor criminal convictions.

Employers want to ensure that the people they hire fit your company culture and don’t pose any threat to their business or other employees. But it’s also true that every employer is different and, for that matter, every job comes with a unique set of responsibilities.

Ultimately, it’s an answer each employer has to determine for itself.

There are, however, some considerations that employers should take into account before making a hiring determination. In particular, employers should consider how long ago the offense occurred, whether the candidate is a repeat offender and how the offense relates to the job being sought. You also need to consider if there are any industry regulations that might apply. For instance, if the person is applying to be a pilot, a marijuana conviction could preclude an airline from hiring them. Whereas the same conviction might be immaterial for someone applying to be an accountant.

As always, employers should always remember to follow proper adverse action procedures if they ultimately decide not to hire the person due to outcome of the background check.

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Resume Verification: 3 Keys For Success

Successful resume verification can identify fraudulent degrees, incorrect employment and graduation dates, inflated salary histories and false job titles—issues that may help you determine a candidate is not right for you.

But what goes into a successful resume verification process? An important factor is the quality of the information provided by candidates in both the applicant release form and employment verification form (usually included on a job application or background screening questionnaire). If complete and correct, this information can be particularly helpful for completing background checks. However, if it’s incomplete or incorrect, it can hinder the verification process.

Here are three keys to getting the information you need for a successful resume verification process:

Wet vs. Electronic Signature

For legal reasons and verification purposes, candidates must submit a signed release that authorizes you to conduct an employment background check before you can begin the process. When a researcher contacts a candidate’s former employer, they usually request a copy of that release before they verify any information.

The problem: many employers have their candidates electronically sign these forms, and in many cases, this authorization simply requires a candidate to check a box that grants consent. While electronic consent is legal, many employers won’t verify past employment without seeing a “wet” signature or something resembling a signature.

They do this because they can’t afford to release confidential or protected information without proof that they were provided proper authorization by the subject of the inquiry. If you don’t have this information, there’s a good chance that they will withhold information until you can provide it.

Avoid this problem using one of two methods. The first: fax or scan and email the form. The other: use an electronic signature, but instead of a check box, use mouse-signature technology.

Ask Candidates To Be Thorough

Ask applicants to be thorough when listing past employment information on an employment verification form. If a candidate worked for a company with franchises or multiple locations, such as McDonald’s, providing something like the information below will not suffice.

  • Name: John Smith
  • Employer: McDonald’s
  • Location: N/A
  • Contact Information: N/A

To prevent this, communicate to candidates that they need to provide as much information as possible, including:

  • Employer Name
  • Employer Location
  • Employer Phone Number or Website
  • Dates of Employment
  • Starting and Ending Job Title
  • Starting and End Salary
  • Reason for Leaving

This advice isn’t limited to employment verification, as academic information also must be filled out to completion. Failing to do so may result in candidates not clarifying whether they graduated from a school or only attended, which can delay the background check.

Another commonly overlooked piece of information: whether candidates worked directly for the organizations they claim or through temp agencies or contractors. Not having this information can delay the search while the background screener attempts to resolve the inconsistency.

Employment Verification Form vs. Verified Information

The best verification is one where the screening company can compare the information the candidate provided to the information the employer shared. This is why I encourage you to tell candidates that they must fill out all of the information requested to the best of their ability. This can be used to highlight inconsistencies such as dates of employment, salary, job titles or responsibilities, etc., which in turn offers more insight into a candidate’s experience and character.

If a hiring manager is able to see that candidate-supplied information matches the verification, they can make an informed hiring decision, knowing that the information the candidate provided was accurate. The opposite is also true—for candidates whose information does not align with the employment verification, a hiring manager can look at the discrepancies and make an intelligent hiring decision.

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Five Millennial Background Screening Challenges

By the end of 2015, Millennials are expected to outnumber Baby Boomers in the workplace for the first time. They’re hot commodities, but hiring them creates background screening challenges.

In particular, when screening Millennials, employers need to take into account not only what’s effective, but also what’s legal. Below are five of the chief challenges.

1. Social Media Searches

We know Millennials love their social networks. But some say Millennials share too freely. The resulting wealth of online information can be tempting for hiring managers.

Using social media to screen candidates can be risky, however. The information you find might not be legal to use in a hiring context. Information about religious affiliation, national origin, sexual orientation, marital status or health condition may all be prohibited under anti-discrimination laws. Plus, Millennials appear to have more cultural diversity than Gen X or Baby Boomers—42 percent identify with a race or ethnicity other than non-Hispanic white.

The legal risks associated with social media searches are not unique to Millennials, but because of their diverse makeup and propensity to share, employers are more likely to stumble upon protected class information. Employers shold ensure social media screening is done by those who are familiar with the legal risks.

2. Digital Natives And Age Discrimination

Millennials are not direct targets for age discrimination. But the hiring criteria you use to attract Millennials might be at the expense of people protected by the Age Discrimination in Employment Act (ADEA) and similar state laws.

For example, in 2013, Facebook settled a lawsuit with California’s Fair Employment and Housing Department for posting an employment ad that stated “Class of 2007 or 2008 preferred.”

Another example is the term “digital native”—people born and raised in the digital age. It’s code for Millennials, and it’s popping up in job ads. Legal experts agree that pre-screening for digital natives is thinly veiled age discrimination. Instead of screening for digital natives, identify the job requirements. If you want someone skilled in tech and comfortable in the digital environment, use those words. Chances are, lots of Millennials will be qualified and respond.

3. Driving Records

According to AARP, Millennials drive around 25 percent less than their counterparts did just eight years ago. If a licensed driver with a clean driving record is your target, you might be eliminating prospective Millennial applicants. That might not be a big deal, but like all parts of a background check, you want to make sure the information you are seeking is relevant to the job.

Before you run a motor vehicle report (MVR) on an applicant, ask yourself why. Is a clean driving record a bona fide job requirement? Requiring a driver’s license or running a motor vehicle check would not rise to the level of discrimination, per se, but could limit your job pool in the 20-30-year-old market.

4. Credit

Millennials tend to rely less on traditional bank loans and credit cards, are more likely to use cash, and spend less than Gen X or Baby Boomers. They also tend to borrow less. As a result, many are “underbanked”—have little or no credit history. If a credit report is one of your job requirements, expect little or no information about unbanked Millennials.

Credit is already a slippery slope, with many states prohibiting use of credit for pre-employment screening. Credit information is a sensitive topic for many job candidates. It could be even touchier for Millennials.

5. Job History And Verifications

Millennials job-hop. According to Data Facts’ blog, “a whopping 91% of them don’t expect to stay at a job for longer than 3 years.” Moreover, according to a recent federal study, Millennials are less likely to have worked during school. So they are more likely to leave college without a work history.

All of this leaves a prospective employer with less to work with in terms of reference checking and verifications. As a result, screening for job history, applied skills and experience might be more challenging. One possible solution: expand the scope of inquiry to include volunteer experience and potentially personal references. However, the use of personal references and investigative reports may necessitate additional notices and further legal compliance under the Fair Credit Reporting Act.


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Dos & Don’ts of Screening Your Candidates Online

Should employers use social media to screen candidates? A good question without a right answer; it’s a gray area both in the law and company policies, especially because many employers don’t even have a social media policy. However, there are pros and cons to utilizing social media and search engines in the hiring process, and hiring managers want to know—to snoop or not to snoop?

First, let’s take a look at how many in HR say that they use social media in the hiring process. A significant portion of employers do use social media but not for screening job candidates. According to recent data from the Society for Human Resource Management (SHRM), 77 percent of all employers surveyed “are increasingly using social networking sites for recruiting, primarily as a way to attract passive job candidates.” Far fewer employers — just 20 percent — use social sites or online search engines to screen job candidates.

Even with legal dangers overhead, some employers feel that using social media gives them another powerful tool to protect their interests, especially when it comes to hiring the right kinds of people and building an effective workforce. Take a look at these three key legal concerns.

Privacy: Employees and job applicants expect and are entitled to a reasonable level of privacy. State and federal laws, as well as the contractual terms for some social media services, may limit your reach into a prospect’s profile.

Discrimination: Title VII of the Civil Rights Act and state laws prohibit employers from making hiring decisions based on protected class information — information that could be seen inadvertently on a job applicant’s profile.

Accuracy: The Fair Credit Report Act (FCRA) requires maximum possible accuracy in background checks. If you can’t prove something, you shouldn’t use it.

Alongside the risks, there are seven crucial dos and don’ts as you determine whether or not you should be using social media in the hiring process.

  1. Do designate a project owner. Consider putting a knowledgeable, well-trained individual in charge of reviewing and vetting the information found on social sites before turning the information over to the hiring manager.
  2. Don’t ask candidates for passwords. It’s already illegal to request passwords in six states, and 21 additional states are considering similar legislation. Asking for passwords may also damage your company’s reputation (if candidates start spreading the word) and employment brand, making it harder for you to engage and hire top talent.
  3. Do consider FCRA implications.The FTC has been calling out web services for acting as consumer reporting agencies when supplying employers with aggregated social media data for employment. This means that employers who use such sites have to follow Fair Credit Reporting Act (FCRA) procedures and obtain prior written consent from job candidates to conduct a search and also supply them with advance adverse action notices.
  4. Don’t believe everything you read and see online. Verifying the accuracy of information you find online can be extremely difficult, especially in a world of user-generated content, photo-altering software and open networks.
  5. Do beware of TMI (too much information). In fact, be prepared to find more information than you want, need or can use legally. A simple Facebook search could turn up information that, if used against a candidate, could result ina Title VII discrimination claim. Remember, information readily available on a public page (religion or race, for example, gleaned by glancing at a profile picture) is protected class information. And once your hiring manager sees it, you cannot “un-ring the bell.”
  6. Don’t use social media inconsistently. One danger of using social media lies in applying it inconsistently — in other words, conducting an exhaustive social search on one job candidate but doing only a cursory investigation on another. If your internal search practices are scrutinized, inconsistency could lead to legal problems.
  7. Do create a written policy for using social media in the background screening process. Make sure that applicants are not taken by surprise and are made aware of the policy in advance. Work with your attorney to make sure that the policy defines your search parameters, who reviews the results, privacy considerations and what information you are and are not looking for.

About the Author: Nick Fishman co-founded EmployeeScreenIQ in 1999 and serves as the company’s Chief Marketing Officer and Executive Vice President. He will be a guest on the December 10th #TChat Show.

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