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Increased Legislation Does Not Equate to Decreased Background Checks

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Employers’ Questions Answered

For employers, the stakes of hiring the right person have arguably never been higher. New legislation, along with increased societal expectations, stricter regulations, enhanced Environmental, Social, and Governance (ESG) issues, and unfettered access to an organization’s ethical footprint all require an employer to truly know who they are hiring. Thanks to social media, one misstep and future potential candidates and consumers know about it in near real-time.

In response, there is an increased emphasis on a strong company culture and even stronger values, requiring employers to find the candidates who align with those values. Simply, it requires them to find people they can trust. And it’s probably no secret that one of the best ways to do so is conducting background checks. However, the question of who they are hiring is becoming increasingly difficult to answer, leaving many employers to question this very principle.

The Intersection of Increased Crime and Decreased Access to Information

At a time when crime is on a drastic rise throughout much of the country, laws are being passed significantly limiting the amount of information from a background check employers can actually utilize. For example, a new California law that takes effect July 1, 2023, effectively seals the records of many felony convictions if they occurred on or after January 1, 2005, if the individual completed all terms of incarceration, probation, mandatory supervision, post-release community supervision, and parole, and if the individual is not convicted of a new felony within four years. Additionally, if the conviction occurred on or after January 1, 1973, and before January 1, 2005, the records will also be sealed under many circumstances. Clearly, this law will severely limit the amount of information a prospective employer can consider upon hire—and this is just one of many laws limiting (or eliminating) access to information across the country.

Along with the Clean Slate laws that several states have enacted similar to California, courts have also made it more difficult to search for criminal records. Several courts across the country, including courts in California and Michigan, have removed identifiers from records, making it far more difficult to determine if a record belongs to a specific candidate or not, and significantly increasing the time it takes to return searches.

With increased frustration, some employers are expressing the desire to give up, thinking a background check may be pointless if they can’t access certain information. But what they are failing to realize is that with crime rates up and new ways to defraud unsuspecting consumers and companies, background checks are more important than ever for exactly those same reasons. According to the Bureau of Justice Statistics (BJS) recently issued Indicators of Workplace Violence report, the number of U.S workplace homicides increased 11% from 2015 in 2019. Additionally, according to the same report, “[I]n 2019, the rate of nonfatal workplace violence was 9.2 violent crimes per 1,000 workers ages 16 or older, according to the [National Crime Victimization Survey] NCVS. This was a 25% increase from 2015.”

These dire numbers are in addition to the amount of money companies lose due to fraud. In fact, according to an Association of Certified Fraud Examiners study, the average organization loses 5% of its revenue because of fraud. And then, of course—there is always the high cost of cybercrime and industrial espionage prevalent throughout some companies.

Workplace violence and fraud-related crime continue to impact companies in serious ways. Still, many employers are unsure about what steps to take in light of these laws. In an effort to help shed some light, we’ve compiled some of their most commonly asked questions.

Employer Questions About the Relevance of Background Checks

 

1. Are Background Checks Still Important?

The short answer … Absolutely. The long answer is that one of the most important decisions an employer can make is who to hire. This person will have a direct impact (whether small or large) on the company and its culture. Simply, in order to determine if an employee is a strong fit, an employer must know more about who they are, including some important things about their past.

Hiring takes a significant about of time and money and, if not done correctly, will only negatively impact the company moving forward. And while some jurisdictions are limiting the criminal information that can be considered, there are many other background check searches that can help demonstrate who is sitting in front of the employer (or on video) in that interview. Additionally, many of the laws impact only timing—when an employer can consider such information—not prohibit it completely. Essentially, there is still an abundance of information out there that is available to employers, all without inhibiting compliance with these laws.

 

2. Can’t We Just Run Background Checks on High-Level Positions?

Some employers are wondering if they should only run background checks on higher-level employees who have greater access to financials and sensitive information. However, only focusing on those in high-level positions creates considerable security gaps within the company. Having some employees who are thoroughly vetted and others who are not is not enough to minimize risks. Regardless of the position, if an employee has criminal propensities, they will find a way to access what they need to damage the company once within its walls (whether the physical walls of a building or the invisible walls of cyberspace). Additionally, even without criminal propensities, they may have a poor work ethic or be completely unqualified to carry out the functions of that particular job (information that could be revealed with employer and education verifications), resulting in high turnover and increased costs.

 

3. Can’t I Just Look on Social Media?

The employers that ask this question are often overlooking a critical point—just because information is accessible (i.e., all over social media—even on public accounts) does not mean that information can be used for the purposes of evaluating a potential employee. Employers who attempt to review social media on a potential candidate themselves run the risk of obtaining information that cannot be used or even considered for employment, including race, age, sexual orientation, religious affiliation, and many other protected classifications.

Employers who wish to use social media searches are better served by engaging with a background screening company to review a candidate’s platforms. As a neutral third party, background screeners can review the social media profiles and provide only the information employers may need or consider, such as threats or acts of violence; racist, sexist, or discriminatory behavior; and other potentially illegal activity. Social media searches performed by a neutral third party are an effective complement to a criminal search and any verifications of prior employment or other credentialing background checks.

4. What Can I Do?

Employers must understand that complying with these various laws does not diminish the value of a comprehensive background check. While it may seem daunting, it’s far easier to deal with it now than potentially bringing someone into the company who is dangerous or not the right fit. There’s just too much at risk. Working with a PBSA-accredited firm that knows all these nuances is crucial in this respect. Doing so can help employers choose what searches make the most sense for them in their situation, industry, and geographical location to get the most amount of information possible for an informed decision.

There are a number of ways additional information to determine character and integrity can be obtained. For example, verifications, including employment, education, professional licenses, and references help employers ensure that what an applicant has listed on their resume or job application is true and that they have the qualifications required for the position. Essentially, verifications help avoid hiring someone who has been less than truthful from the start.

Ultimately, employers need to know who they are hiring. A company should take the needed steps to ensure they onboard the best employee for their company, while also maintaining a level of protection and security. Regardless of what laws are passed, a thorough background check compiling all legally permissible information remains the best way to determine if an applicant’s past is the right fit for the company’s future.

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.

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