How HR Can Comply with Background Check Regulations

16 Jun

HR professionals need to comply with regulations on background checks.

Many human resources departments perform pre-employment background checks of job candidates during recruiting. Most know that the U.S. Equal Employment Opportunity Commission prohibits employers from discriminating against candidates based on their criminal histories, even though employers have not necessarily been barred from examining job applicants' past crimes. However, it is important that HR professionals understand new regulations for background checks. 

Information on New Regulations
While there have historically been few regulations on background checks and legislation on this issue has varied from state to state, Human Resource Executive (HRE) Online noted the federal government and certain states and cities have started taking action regarding checking the criminal histories of candidates. According to a Q&A in HRE Online, regulations on pre-employment background checks are becoming more common, and HR professionals need to ensure their recruiting and application policies comply with these regulations.

For instance, the HRE Online article said Minnesota, Indiana and North Carolina have taken legislative action regarding pre-employment background checks. Minnesota in particular has a new law that came into effect at the start of this year that stops employers from asking or even considering a candidate's criminal record after he or she has already been picked for an interview or offered employment, HRE Online noted. HR professionals should always be conscious of state and federal laws, which often overlap or differ from one another, in regards to compliance with employment legislation.

Insights into the Bed Bath & Beyond Case
Employers can take it upon themselves to stop rejecting job applicants with crimes in their backgrounds. According to Bloomberg, Bed Bath & Beyond has already done so after an investigation by New York into the company's practices. Bed Bath & Beyond came under fire after one of its HR professionals said at a job fair that the company doesn't hire people who have been convicted of felonies. The New York State Attorney General's office investigated the matter and found the company needed to better train its workers about state regulations.

The retailer has since reached a settlement with the state, agreeing to pay $125,000 and another $40,000 in restitution. A Bed Bath & Beyond spokeswoman has since said the company acknowledges state and federal laws regarding employment, and understands "employment opportunities should remain open to individuals with criminal histories that have been rehabilitated," Bloomberg reported.

How Employers and HR Professionals Can Ensure Safety
Some companies have implemented policies against hiring people with felonies or criminal histories to keep the workplace safe. According to an article in TLNT, a lawsuit brought forth by Texas against the EEOC claimed that the organization's guidance about background checks can actually put people in harm's way, as the state would have to consider those with criminal histories for law enforcement and teachers, just to name a few. TLNT noted the EEOC only provides guidance in this matter, and doesn't necessarily require employers to hire those with criminal histories.

Employers should also be careful not to speculate about if a convicted felon can harm others in the workforce. In fact, Madeline Neighly, staff attorney for the National Employment Law Project, told Bloomberg in an email regarding the Bed Bath & Beyond case that it can actually benefit public safety to hire those with criminal histories.

"Excluding anyone with a criminal history from employment undermines public safety," Neighly wrote in the email. "Employment is key to reducing recidivism and strengthening families and community involvement."

HR professionals need to always be aware about how their employment and employee management policies comply with discrimination and employment regulations and guidance.

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