Screening Trend: 'Ban the Box'

Les Rosen on Top Screening Trends of 2013
Screening Trend: 'Ban the Box'

The "ban the box" trend will gain momentum for background screening in 2013, says screening expert Les Rosen, who analyzes the movement to remove criminal-conviction questions from job applications.

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Rosen, head of the screening firm Employment Screening Resources, says the "ban the box" movement originated in the public sector and is now spreading to private organizations as well.

"The 'ban the box' movement basically says, 'We have a large problem in this country with ex-offenders not being able to obtain employment, and unless an ex-offender can get a job, they can't become a tax-paying, law-abiding citizen,'" Rosen says in an interview about top 10 screening trends with Information Security Media Group [transcript below].

In 2012, the U.S. Equal Employment Opportunity Commission issued new guidance on criminal records to prevent employment discrimination during background checks. This adjusted guidance was included in ESR's annual Top 10 Background Check Trends report.

"Why have a criminal question early in the process that serves as a knock-out punch based upon a person's status as an ex-offender, as opposed to their knowledge, skills, abilities or experience?" Rosen says.

In an interview about the latest screening trends, Rosen discusses:

  • Highlights of the new report;
  • Effective ways to employ criminal background checks;
  • Do's and don'ts regarding social media in screening.

Rosen, a retired attorney, founded ESR in 1996. In 2003, ESR was rated as the top screening firm in the U.S. in the first independent study of the industry - a research report prepared by the Intellectual Capital Group, a division of HR.com. Rosen is a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. He has testified in the California, Florida and Arkansas Superior Court as an employment screening expert on issues surrounding safe hiring and due diligence. He is the author of "The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Imposters and Terrorists out of the Workplace." He is also the key presenter in the webinars Risk Management: New Strategies for Employee Screening and Avoid Negligent Hiring - Best Practices and Legal Compliance in Background Checks.

2012 Screening Trends

TOM FIELD: As we get into the year ahead, I want to look back on the previous year as well. What do you see as being among the top screening stories that we saw in 2012?

LESTER ROSEN: I think the story that really stand out, first and foremost, is the fact that the EEOC, the Equal Employment Opportunity Commission - the folks in Washington charged with enforcement of Title VII of the Civil Rights Act - took a new look at the use of criminal records when it came to employment, how that worked with background checks and hiring, and issued a brand new guidance that came out April 25, 2012 talking about how criminal records should be used properly; how they could be misused; how they could result in discrimination. Eventually, those new rules will probably revolutionize the way that American employers hire pretty significantly in terms of application forms, in terms of how past criminal questions are asked, when they're asked and how past criminal convictions should be used. What would happen if a person reveals a criminal conviction? That's a big game changer and that's something we'll see in 2013. It continues to be a trend as employers continue to grapple with best hiring practices.

A couple of other big stories both came out of the Federal Trade Commission. The Federal Trade Commission is one of two federal agencies involved with the administration enforcement of the Fair Credit Reporting Act, the FCRA, the federal law that governs background checks. They did two significant things this year that really stood out. One is that they went after a large national screening firm with allegations revolving around accuracy issues resulting in a settlement, and a settlement means there's no admission or finding of wrongdoing. There's a settlement. The settlement was for a whopping $2.6 million that caused a lot of employers to pause and take a look at their background screening practices. They also went after a database company, or a web company that sold data over the web, resulting in an $800,000 fine stemming from allegations. Again, it was settled, but the allegations are that the company was selling background check information without advising employers that this was covered by the Fair Credit Reporting Act. Those were three of the bigger hot-ticket items. After that, there were a slew of legal changes that occurred in 2012 in various areas, and some of those are going to spill over to 2013.

Top Screening Trends for 2013

FIELD: I want to come back to a couple of these topics, but right now I want to talk about your annual top-ten trends report. You're just out with it. What are among the top trends in background screening for 2013?

ROSEN: The three top trends - and they're actually related - involve the EEOC. There's something called "ban the box," and our number-one trend is the newly increased focus on accuracy in background checks. The ban-the-box trend, for those not familiar with the term, refers to a movement that has been taken off around the country, primarily with states, municipalities, cities and counties where governmental entities, when they have employment applications, are "banning the box," and that box is the box where someone is asked, "Do you have a criminal conviction," and there's a box for "yes" and a box for "no." The ban-the-box movement basically says, "We have a large problem in this country with ex-offenders not being able to obtain employment, and unless an ex-offender can get a job, they can't become a tax-paying, law-abiding citizen. And as a society, we can't afford to build more prisons than schools and hospitals, so let's give people a second chance." That's part of the Second Chance movement.

And it doesn't mean that pedophiles will be supervising the playground or bank robbers will be behind the cash drawer at some county office. Initially, the idea is to let everyone apply so everyone can be considered on their merits, and then down the road an appropriate background check is conducted at an appropriate time. The idea is to get people in the system because there are a lot of people with minor criminal records, criminal records for minor things that may have happened four, five or six years ago that may not be particularly relevant to a job.

The ban-the-box movement has been in the public sector, and what the EEOC did, which is trend number two, is one of the suggestions they made is that employers should consider the use of ban-the-box in the private sector as well. The idea being, why have a criminal question early in the process that serves as a knock-out punch based upon a person's status as an ex-offender as opposed to their knowledge, skills, abilities or experience. That's a big trend.

The EEOC also suggested that employers do something called an individualized assessment if a criminal record is used to deny a job. That employer is not asked large or open-ended questions when it comes to a person's past criminal conduct, because it could illicit information that's either old or irrelevant. To be careful about analyzing a past criminal record, the EEOC gave more guidance in that. That was a big issue and that was issue number two.

The number-one issue this year we felt was the emphasis on accuracy, given the EEOC action, that $2.6 million settlement, the fact that there have been news stories about this. Some organization issued what they labeled a study about background reports. It's been in the news lately. In 2013, the emphasis by the screening industry will be to demonstrate how accurate we are. We do millions of background checks a year and the industry may come up with two or three instances where somebody didn't work out exactly right, but the emphasis on accuracy and increasing accuracy is critical, because even if there's only a small number of incidents that weren't correct, the background-screening industry obviously wants accuracy to approach 100 percent because there are people with jobs on the line. Those are the three big trends, and there are other trends as well having to do with legislation concerning off-shoring, privacy and social media.

Criminal Background Checks

FIELD: There are a couple of trends I'd like to dive into, and one of them is the criminal background checks. Based on the trends that you've seen and what you've talked about today, are we coming to a point where criminal background checks simply can't be a screening consideration?

ROSEN: I would say absolutely not. One of the things that came out of the EEOC guidance was a reaffirmation of the fact that background checks are absolutely lawful. The process under which an employer can do it is protected and provided under the Fair Credit Reporting Act, and it's absolutely clear from industry statistics and lawsuits for negligent hiring that background checks, particularly criminal background checks, are mission-critical for every employer. Sometimes you see in the news stories about how unfair it may have been in a particular case where someone had the same name as somebody else and didn't get a job, and so on and so forth, but at the same time you also see stories every day, or almost every day, where some employer is sued or some public organization or entity is criticized for failure to do background checks. That's the catch 22 employers are in. If you don't do them, you can get sued for negligent hiring if you hire someone that's unsafe, dishonest, has a type of a criminal record that makes them unsuitable for a job. But if you don't do it right, you can get sued as well. The walk-away lesson is not that criminal background checks should not be done. In fact, the opposite is true in our society today. It's more critical than ever employers make sure that they're hiring safe and qualified people.

The walk-away point rather is that criminal background checks are more complicated than perhaps thought of before and it needs to be done right. There can no longer be - and there should never have been - a knee-jerk reaction to the idea that just because you have a criminal record you can't work here. The EEOC tells us through their guidance that it's much more complex than that. You need to consider the nature and gravity of the crime, the nature of the job and how long ago the crime occurred. Perhaps a crime is too old to be of relevancy now, so the walk-away point for employers is not that you should stop doing criminal background checks. If anything, you need to make sure that you're doing proper checks for each position.

The walk-away point is to be much more circumspect in the way that these background checks are used. What we're seeing now is in two or three years, we're seeing an evolution towards employers developing, deploying and using criminal matrixes, relevancy matrixes where employers will be able to take a look at a particular offense and based upon having analyzed the job, the job functions and the essential functions of each job, are able to assign a certain amount of risk to each job in conjunction or comparison with a particular offense.

The next movement forward will be development of a relevancy matrix when it comes to criminal records. The short story is, absolutely, you need to do the criminal checks, but even as important or more important, you need to do it in a way that complies with the EEOC guidance with knowledgeable experts.

The Use of Social Media

FIELD: Let's talk about privacy regulations as well. You have mentioned social media in talking about the trends, and we know that's been a trend for organizations to use social media. What is and is not fair game now when employers are surfing the Internet for information on particular candidates?

ROSEN: This is an area that's intriguing for employers because for so many years employers were really stuck with trying to determine or discern whether a person should be hired based upon the person's resume, past references, how they presented themselves in the job interview, and suddenly with the advent of Web 2.0 and social media and the fact you can now look at a person's cyber-identity, you suddenly have this fascinating possibility that you can look under the hood into a person's brain essentially and see what they're doing, what they're saying, how they're behaving when they think no one is looking. What they say on social media pages, what they're tweeting, what they're blogging and so on and so forth, it's somewhat irresistible because you start with the premise that each person you hire represents a large potential investment, not only in terms of the time and energy to hire the person, but also the salary you're going to pay them and the management and the role they will play in your workplace. And every bad hire comes with severe consequences. Some studies suggest that for every bad hire, it might cost you two or three times that person's salary. There's a lot at stake here. With social media, it's real inviting to want to look at it.

The walk-away point with social media is you've got to be careful out there. There are a lot of pitfalls and traps for the unwary when it comes to social media. Three of the big ones have to do with discrimination, privacy and authenticity. Part of the problem is when employers start using the Internet willy-nilly, you might come across things such as a person's race, creed, color, ethnicity, nationality, whether they're married, whether they have kids, a man, woman, age, all sorts of things. And they all have one thing in common: those violate federal and state discrimination laws and you can't consider those.

If you look at any of these websites too soon in the process, there's this great legal phrase called "pregnant with knowledge," that you become knowledgeable of things you're not supposed to know, and that becomes a dangerous area for employers.

There's also the area of privacy. I think there's a mistake in belief that just because it's online, it's fair game. That's not so sure yet because privacy is based upon a reasonable expectation of privacy. You have your community norms. When people go on various websites and social media sites and they think they're talking to their friends, they could claim a reasonable expectation of privacy. And besides, the terms of use of any of these sites say they can't be used for commercial use. Now, of course, they could set their privacy settings to limit privacy, but that's like saying to someone they invited a burglar in their home because they didn't lock the door sufficiently. There are lots of complicated issues even in the privacy area.

The third big area is authenticity. How do you even know it's your person? I could go on the Internet and in about five minutes create a blog under anyone's name I wanted to and say all sorts of silly things. There are all sorts of issues for employers, so we tell employers to approach this area very carefully. The most conservative approach, if an employer feels that there's a real advantage to looking at the Internet, would be to wait until there has been a conditional job offer and there has been a consent to have a documented process where you're looking at the same type of sites in the same way for everybody so there's no suggestion of discrimination. As you're looking at these sites, look at things that are clearly business-related to the position. We also suggest that employers consider that whoever searches these websites not be the decision-maker and that one party does the searching. If they find something that's job-related, that could then be reported to the decision-maker. [This is so] the decision-maker is not subjected to all the raw material on the Internet, and maybe even give the applicant a chance to take a look at it first. It gets pretty complicated in terms of the steps, but we do suggest that employers not just jump on the Internet and start searching until you have thought this out and you have a policy and a procedure so you can insulate yourself from any legal challenges.

Background Screening

FIELD: I want to ask your advice on a couple of different levels here. One is for an information security professional. How do you advise an individual to proceed when they're in an employment situation and they're asked to submit to background screening?

ROSEN: That's a great question and for an information specialist as well as any applicant, there are a few things to keep in mind. Number one, under the federal Fair Credit Reporting Act, the FCRA that we mentioned, as well as many states with similar laws, you have an absolute right to know that a background check is being conducted. You have to authorize it in writing and you're entitled to a disclosure. In addition, if the background check report comes back with anything that you think is incorrect or incomplete, you have an absolute right to request a re-investigation. You have a right to have a copy of the report. You have a number of other rights.

More important than that is if you're going to undergo a background check procedure, you don't want to be the last person to know what's being said about you out there in the world. For example, if a credit report may be associated with your position and although we do not encourage employers to rank credit reports broadly, for some positions it may be relevant. You certainly are entitled to your once-a-year, free annual credit report from each major credit bureau to make sure there's nothing in there of concern. If there is anything in there that's of concern, then mention it during the interview. We find that information honestly disclosed early has much less impact, if any, than potentially negative information found later in the process. You may also want to go to one of these websites. There are a number of them out there all over the Internet. You can do your own Internet research and make sure that there's no one out there that shares your name that has a criminal record. Every once in a while, as unlikely as it might be statistically, we do find situations where people have the same name, the same or similar date of birth, are in the same state or geographically close, where one has a criminal record and the other person doesn't.

Advice for Hiring Managers

FIELD: For hiring managers, given the trends we've talked about, how should they approach screening in 2013?

ROSEN: It's a lesson that we're all learning and is becoming very, very obvious. When you look at the FTC enforcement actions, when you take a look at the EEOC, when you take a look at what states are doing and various laws that are passed, background screening, if it ever was, certainly can no longer be considered a commodity. It's simply not a situation of all background checks are the same and who just does it the cheapest, and I think a hiring manager really needs to dig deep into the whole process before working with a background screening vendor to make sure that it's a vendor that offers a professional service, not just a commodity product, because there are so many traps when it comes to background checks.

The laws are byzantine in their complexity, talked [about] a little bit today, the tip of the iceberg, about the EEOC complications. There's the FCRA. There are other laws that apply to background checks. There are 50 states, many with their own laws as well, and so the big walk-away point when going forward and doing a background checking program is the legal compliance aspect. Is the information obtained legally? Is it being used in a proper fashion? Am I only getting information that's actionable and accurate? Those are big issues for hiring managers.

Also, hiring managers need to be very careful that they're using the right tools, and sometimes we'll find that there are some employers who say, "I'll just use a database. It's cheap, it's quick and it's fast." One of the trends that we came out with this year is to point out that increasingly employers are realizing that databases, which are these big amalgamations of data across the 50 states, for lack of a better term, are data [dumps]. It's incomplete. It has holes. It's not necessarily updated. It's a great tool for background firms in terms of having the ability to look for other jurisdictions of search, but hiring managers and users have to understand that these databases are full of holes, full of false-negatives and false-positives. In no way, shape or form did it constitute anything that you would call real background checks. You need to be careful that you're getting the real thing.


About the Author

Jeffrey Roman

Jeffrey Roman

News Writer, ISMG

Roman is the former News Writer for Information Security Media Group. Having worked for multiple publications at The College of New Jersey, including the College's newspaper "The Signal" and alumni magazine, Roman has experience in journalism, copy editing and communications.




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