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Choosing Job-Related Searches
As you know and will read more about below, the EEOC published guidelines in 2012 requiring that the background screening process be job-related for the position in question and linked with business necessity. But how do you know what searches to order based on the job?
Below is a very short summary of commonly requested searches and the information they provide, to help you decide if they are related to the position for which you are hiring.
County Court Records - Misdemeanor and Felony information from the local courthouse. Typically a 7-year search of counties of residence. This is the basis of most criminal background searches, and the most common and effective way for searching for information on convictions regarding theft, drugs, violence, and other criminal activities.
National Criminal Database - Misdemeanor and Felony information from a compilation of records from various sources across the United States. This is not a comprehensive nationwide search but a way to potentially capture records outside of the counties of residence.  Please note: Any adverse information discovered on this source must be confirmed at the local source (county) before reporting.
Sex Offender Registry - Often used when employees are working with vulnerable populations, unsupervised in a private home, etc. Please note: Sex Offender Registry records are not provided unless they are ordered specifically or there is a protocol on your account to verify them if they should arise from a database search.
Motor Vehicle Report - Traffic violation information that would apply to employees driving for the company. (DUI information would also appear in county records, if in a reportable period.)
Employment Credit Report - Personal financial information without a FICO score. Many states restrict this information to employees that are involved in the finances of the company only.
Of course, there are many other searches available that relate to specific industries and job duties. Please let us know if you have questions about your screening protocols.   info@occuscreen.com or 888-833-5304 
EEOC Guidance on Assessing Criminal Background Results
 
In April 2102, the Equal Employment Opportunity Commission published guidelines for the background screening process. We have been including information in our newsletters for the last few years about the guidance, including information that the background screening practice should be "job related for the position in question and consistent with business necessity", that arrest records should not be used as a hiring factor, and that results should be individually assessed.

Here is some additional guidance pulled from the EEOC report on how to individually assess the records of an applicant employee.

The EEOC suggests using a process called Nature/Time/Nature when assessing criminal records:

"The nature and gravity of the offense or conduct;
The time that has passed since the offense, conduct and/or completion of the sentence; and
The nature of the job held or sought."
 
Here is a summary of these factors from the EEOC Guidance: (Link to the entire guidance is below.)  

The Nature and Gravity of the Offense or Conduct    
Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation. With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.

The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence
Employer policies typically specify the duration of a criminal conduct exclusion. Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. Relevant and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.
 "there is a time at which a former criminal is no longer any more likely to recidivate than the average person . . ."

The Nature of the Job Held or Sought
Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job's duties (e.g., data entry, lifting boxes), identification of the job's essential functions, the circumstances under which the job is performed (e.g ., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job's duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.
Using the EEOC Guidance can help to ensure that you are screening and assessing your applicants and employees appropriately. Here are some resources to further help with your protocols:
 
                      
FTC/EEOC SUMMARY OF GUIDELINES : WHAT EMPLOYERS NEED TO KNOW

Questions? Please contact us at 888-833-5304 or info@occuscreen.com 

 


 

 

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