Fair Chance Employment

	Michelle Dreier

Do you run background checks on new hires? Should you? Especially if an electrician is working in a client’s home, nursing home, school, it’s a good idea. If the report comes back clean, great!  But what if it doesn’t?  Just because someone has been involved with the criminal justice system in the past, doesn’t mean they can’t be a great employee. The Electrical Association is partnering with Fair Chance Employment to bring you a scoring product that helps you make sense of your background check and make informed decisions. KEEP READING: Members of the Association will receive three months of FREE service.

The information on this topic is provided for informational purposes only with the understanding that the authors are not engaged in rendering legal advice or legal services.

 

Submitted by Richard Owen, Fair Chance Employer

Let’s face it, making a judgement call on hiring a candidate with a criminal history can be difficult. The EEOC guidelines for evaluating this population are confusing, the myriad of statutes that can appear on a background check are hard for employers to understand and we’re all wary of a Negligent Hire claim. So, the easy way out is to just say "No”.

But doing so can rob us of a potentially dedicated and loyal employee. So how do we protect our organization and properly evaluate these candidates? The short answer is – get some help. In this month’s edition, we have done just that. What follows is some sound advice from an HR consultant who specializes in Fair Chance hiring.

First off – let’s examine the three challenges listed above. A dozen years ago, the EEOC engaged in a court case that determined the rules we must follow when evaluating candidates with a criminal record. And, of course, when the gov’t tells us to do something a certain way – for us, (just like OSHA) that means - documentation.

If you go to the EEOC website, this is what you will find. The three rules listed under item 4 should be incorporated into our evaluation process. Here is what it looks like:

1. When you have some statutes show up on your background check, you must get a sense of how severe they are. The association has just signed up with FairChanceEmployer.com to access a scoring system to help you with this.
2. Print off any statutes violated and lay them side by side with your job description. If there are any similarities between the crime committed vs. job duties (like a pattern of driving infractions vs. driving a company vehicle) you might consider not hiring that person.
3. Take a look at how long ago the crime was committed. The more time that has passed, the less of a concern that particular statute is. In most cases, your background check company is not allowed to send you any infractions older than seven years.
4. The separate interview found under item 7, above, should be scheduled with the candidate after we receive the background check. The proper order of these steps is found below.

One more comment regarding the EEOC guidelines. We are not allowed to make any broad, sweeping judgments regarding who we will not hire. For example, the most common mistake I hear is, "We won’t hire anyone with a violent crime history” – this is not allowed because the EEOC insists we use a selection process that results in an Individualized Assessment. That’s why using these three judgements (severity, relativity to job and time passed since occurrence) in evaluating each candidate is so important.

We know from experience there are no "magic” questions we can ask that are going to guarantee a solid hire – so, following this hiring process is the best way to ensure a good judgement call – AND – conducting a background check is the best protection from a Negligent Hire claim.

Traditional Hiring Process

• Signed Job Application
• Interviews (with notes)
• Reference check (prior employment)
• Signed job offer (conditional)
• Criminal background check
• Interview re: criminal history

Surprisingly, these claims are easily dismissed because (simply stated) if we can prove we followed this process, then, by definition, we have not been negligent. Below is an excerpt from an article I recently read.

HR attorneys all agree that running a background check is THE best protection against a Negligent Hire lawsuit. I understand that many of us have stopped running background checks – I get it – we don’t understand how to interpret the statutes and levels of crime – so why bother? Let’s shed some light on this issue.

The statutes and levels of crime in Minnesota are listed in a way that makes it difficult to properly evaluate a candidate. In Minnesota, there are four levels of crime: Felony; Gross Misdemeanor; Misdemeanor; Petty Misdemeanor.

What most people don’t realize is that there are actually 11 levels of Felonies. These are not found on the background check so, naturally, we kind of lump all felonies into the "worst case” scenario. Having a way to sort all this out would sure make things a lot easier.

This is where FairChanceEmployer.com comes in. This 3rd party service can issue a score on a 1 to 100 scale for any MN statute that appears on your background check – giving you a better understanding of what that means to you for selection purposes. At the same time, it takes care of the documentation that you have followed the EEOC guidelines we referenced earlier. Through an agreement between FairChanceEmployer.com and the MN Assn of Electrical Contractors, we have arranged for three months of FREE service for our members.

To take advantage of this offer, or if you have any questions regarding setting up a Fair Chance process, please don’t hesitate to ask. Just contact us at info@fcemp.com.

 

Richard Owen, Fair Chance Employer