Pre-screening and criminal record checks for employment purposes can easily be a nightmare for a lot of job-seekers. That is mainly because the employers usually go a long way to ensure that the candidate that they are hiring meets the required standards for hiring.
In some cases, this is mandated by law too. Some employees might not get their federal security clearance if they have a shady past or if their past criminal record can affect the organization’s reputation and credibility adversely.
If the recruiters do not perform their job diligently, they may be fined or held legally responsible for their negligence. Even in cases where the background checks are not required, the employers are bound to perform them in most cases.
The reason that they provide for such criminal record checks is that they wish to prevent theft, fraud, or any other misappropriation. This statistic is particularly applicable to industries that have seasonal work or are based on project-wise revenue model such as construction industry, shipbuilding industry, federal contracts, etc.
Given that, however, employers need to be careful about what sort of information they collect from the employees and what they use it for. In trying to find out criminal records, employers might stumble upon information regarding financials, ethnicity, political opinions, sexual orientation, and a lot of other information that might weigh in on the job. But to what extent they choose to dig is an important question that they must answer.
Legally, criminal records can only be used to decide the hiring process if it impacts the nature of the job the candidate is being hired for. However, there are commissions that hear arguments about discrimination by employers. For that reason, employers have to be careful when asking for criminal record background checks for a potential employee.
Most Human Rights associations and equal opportunity commissions are of the opinion that a blanket ban on an opportunity for employment for a person with a criminal history is not a sound policy.
The employers must take into account the nature of the offense, the gravity of the offense, and how long it has been since the offense has taken place.
Apart from this, employers should also realize that arrest records seldom constitute a valid basis for an automatic bar to employment.
That is because in many countries, certain segments of people are found to be arrested more frequently and for far pettier crimes than non-marginalized communities would be.
Adding an automatic ban for mere arrest records would constitute disparate treatment for such marginalized communities.
Another important thing that the employers should focus on before asking for criminal record checks and issuing a ban on employment is employees’ work history.
The employers would do well to assess the nature of the crime, the circumstances surrounding the crime, and the age of the offender at the time of the crime apart from checking whether he/she had worked a similar job or a job in a similar industry.
Consent is another important thing. This is one thing that the employer should keep in mind before proceeding with the criminal record background checks.
Most countries and most states in those countries require that the employer take the consent of the employee before performing such checks. They might issue a disclaimer that refusing to comply with the background checks can mean that they will not get the job.
In the absence of sufficient information, the employer is free to assume the worst. At least by agreeing to the background check, the employee can explain the black mark on a potential employee’s criminal record check result.
In countries like Canada, the USA that require consent verifications, it becomes a difficult thing for a employers if the candidate refuses to comply with a background check.
When such candidates are hired, it becomes a problem because some industries require candidates with clean records. If they don’t hire them, they might lose out on talent for the sheer reason that they deemed the candidate to be too risky.
Hiring candidates are subject to all the federal and state laws, especially when it comes to the reserved or protected category of people. The other issue comes up when the employers require background checks in the middle of employment.
If the client requires candidates with a clean background, the employer might require a criminal record background check at that time with a disclaimer that refusal would result in termination of the job.
Courts have ruled that if the employer can point to a sufficiently valid reason, then he is within reason to enforce his policy.
