Decreasing Accountability and Increasing Restrictive Laws May Mean You Don’t

Even though the circumstances vary, the tragic stories playing out in the media seemingly have no end. With news reports from Florida to Minnesota to California and everywhere in between, one constant remains—the perpetrators each possessed long criminal histories. In nearly all of the cases, the fact that they weren’t behind bars in the first place is, in and of itself, highly questionable. Unfortunately, the justice system appears to have neglected true accountability as it pertains to individuals breaking the law with alarming frequency.

The Headlines that Haunt Us

We hear about these stories with increasing (and terrifying) regularity. Take for example, the man arrested for the tragic murder of Brianna Kupfer, a UCLA student working in a furniture store. The man was out on bond at the time of the murder and had an extensive criminal history, including firing a gun into a car with a child inside, assault on a police officer, vandalism, and resisting arrest. You may have heard of the man arrested for killing an NYPD officer and injuring another. He was on probation for a drug conviction in New York, and had several arrests outside the state, including unlawfully carrying a gun and assault of a police officer.

There was also the murder of rapper Young Dolph by someone whose criminal history included aggravated rape, robbery, drugs, and shooting three other people. Or the man in Florida with a long criminal past who brutally murdered a 14-year-old boy on a bike ride. And no one will forget the Waukesha Christmas Parade tragedy where six people died and dozens of others were injured.

That perpetrator’s criminal history dated back to 1999, including aggravated battery, felony marijuana, resisting arrest, reckless endangerment, and a felon in possession of a firearm, among other violent felonies. He was also listed as a Tier 2 registered sex offender in the state of Nevada. His background check was a staggering 50 pages long, and yet he was out on a minimal $1,000 bail at the time of the attack.

Should he really have been out of jail? Should any of them have been free to kill and injure other people when they clearly had no regard for human life, or for law, or society, and their place in it? These stories make you wonder where, and when, will the line be drawn in the interest of protecting the public.

The Impact of State Laws and the EEOC

This lack of accountability is coupled with the disturbing trend of states enacting laws that restrict access to information typically used in preparing background check reports, including redacting information at the source. While proponents claim these measures are about giving people a second chance, there is much more to it. In fact, in some instances, any personal identifying information (PII) is removed, making it difficult to determine if the record even belongs to the applicant involved in the first place. This is in addition to the numerous states and localities now automatically sealing convictions under Clean Slate Acts.

The EEOC has issued hiring guidance for employers through their Hiring Initiatives to Reimagine Equity (HIRE), a “multi-year collaborative effort that will engage a broad array of stakeholders to expand access to good jobs for workers from underrepresented communities and help address key hiring and recruiting challenges.”

According to the EEOC, HIRE will:

• Host convenings to examine organizational policy and practices to reimagine equity and expand opportunity in hiring.
• Identify strategies to remove unnecessary barriers to hiring, and to promote effective, job-related hiring and recruitment practices to cultivate a diverse pool of qualified workers.
• Promote equity in the use of tech-based hiring systems.
• Develop resources to promote adoption of innovative and evidence-based recruiting and hiring practices that advance equity.

The additional impacts from the HIRE initiative to employers and their use of criminal records remains to be seen, but as the state and federal government continue to enact these regulations, knowing who you are hiring becomes more difficult.

What about Employers?

Employers must now consider not only if the person they are hiring has a long history of crime, but also if that candidate who may have been reported as “clear” may still have a criminal background. These concerns plague employers, and justifiably so. Recent recidivism statistics show that within three years of release, two out of three former prisoners are rearrested (with more than 50% re-incarcerated).

To help alleviate this challenge, it is recommended that employers:

• Get better acquainted with their background screening provider’s options and processes.
• Ask what additional searches their provider recommends for a more complete picture of their applicants.
• Find out the extent to which social media searches, professional references, and employment verifications could help.
• Ask how their provider clears a record if it could be their candidate, but lacks identifiers.
• Find out what additional steps the provider takes to ensure it isn’t their ‘John Smith.’

Employers can also always choose to get more involved in the process itself by working with their local legislators to advocate balancing second chances with the safety of our workplaces and communities. Additionally, they must pay careful attention to any legislation that may further restrict access to criminal record information, adhere to EEOC best practices and guidance, such as HIRE, and consider the importance of proper processes, documentation, and communication to mitigate legal and financial risk.

While these tragic stories continue to play out in the news demanding our attention, it’s becoming increasingly apparent that not enough people are actually listening. We couldn’t agree more with second chances, but exactly how many chances should there be before we start prioritizing the safety of others? In 2022, it’s time for employers to protect themselves, their businesses, their employees, and their customers.

Hire Image strives to be your trusted background screening resource and partner in 2022 and beyond. If you have any questions about how to best protect your business, employees, and customers, please reach out at contact@hireimage.com.