After months of sorting through applications, you find what appears to be the perfect applicant. His application boasts excellent academic credentials, unmatched work experience, and countless awards and accolades. His interview is "textbook," and you are so excited that within minutes of him leaving your office you authorize the hiring manager to extend an employment offer, conditioned (thank goodness) on the outcome of a background check. When you receive the background check results, you are surprised to learn that your star applicant has embellished his credentials and has a criminal history, including arrests and convictions for violent crimes. Sound familiar?
The background check has been an important tool in the employer's toolbox for years. In these challenging economic (and litigious) times, its importance cannot be underscored enough. Whether an employee exaggerates his or her qualifications or fails to disclose a violent, criminal past, failure to conduct a background check can expose an employer to loss, liability and/or lawsuits. Many resumes contain factual discrepancies regarding education and work experience or exaggerated information about skills and attributes. Failure to identify such errors and omissions before the employment relationship commences can have unfortunate and costly consequences for employers.
While the practice of conducting background checks on job applicants is certainly not new, it has undergone tremendous transformation in recent years. The amount of information available about applicants continues to increase and has become less expensive to procure. In consideration of the wealth of information now available at their fingertips, employers conducting background checks (either in-house or through consumer reporting agencies) must be ever more vigilant not to run afoul of federal and state equal employment opportunity laws, as well as state and federal privacy laws. This is particularly so, given the EEOC's recent identification of "Eliminating Systemic Barriers in Recruitment and Hiring," including the targeting of "exclusionary policies and practices, . . . restrictive application processes, and the use of screening tools," as the first of five (5) nationwide priorities which will guide its enforcement efforts for Fiscal Years 2013 to 2016.
At the 18th Annual Akerman Labor & Employment Law Seminar I will be discussing the different types of background checks available to employers in the digital age and the laws regulating same; the applicability of federal and state equal employment opportunity laws to such activities, including, but not limited to a review of the EEOC Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964; and the overall risks and rewards of knowing whom you are about to hire. I look forward to seeing you on April 18th!
