Background checks for job applicants have increasingly been the subject of debate and discussion in Delaware and elsewhere. The use of such pre-employment screenings is far from clear-cut, and some argue the checks may even discriminate against certain applicants.
The issue was raised recently in Delaware regarding a group of employees at the state’s Division of Substance Abuse and Mental Health who were not screened when hired. That caused a problem last month when the state was about to open a mobile crisis unit with Beebe Medical Center in Lewes because that hospital requires such screenings of its employees.
In total there are about 100 employees at the division who have not gone through such employment checks but not all of them work directly with patients.
“We are reviewing the hiring requirements for community-based state employees in the Division of Substance Abuse and Mental Health,” said Rita Landgraf, Secretary of the Delaware Department of Health and Social Services. “At my direction, the Division of Management Services is conducting a review of existing employees, their roles and involvement with clients, existing hiring requirements and governing policy and law.”
Indeed, there are a number of factors to consider when such employment screenings are conducted, say employment experts.
Criminal, and other reviews including credit background checks, as a condition of employment have become increasingly popular in Delaware and across the nation. In some cases, employers are required to do such reviews, especially for those job seekers who work with children, patients, or directly with money, such as many banking jobs. But more and more, organizations are using such reviews even when a person’s criminal or credit history has little or no bearing on the position sought.
This year the number of criminal background checks by employers in Delaware is expected to rise by 12 percent, according to Sergeant Paul G. Shavack, a spokesman for the Delaware State Police. The DSP through its Bureau of Identification completes about 46,000 criminal background checks annually.
Delaware employers of all types perform such reviews, not just government agencies. And many employers make it clear in job postings that they’re going to dig into an applicant’s background.
For example, Southern States Cooperative in Seaford and 84 Lumber in Claymont both had job openings posted on Monster.com recently, and both included a requirement for background checks as a condition of employment.
Dave Haley, manager of the 84 Lumber store, said the company as been doing such checks for five years and that all employees no matter what the job have to have it done. And Southern States, which employees about 100 people in Delaware, also performs criminal background reviews on all employees once an offer is made, said Turner Gravitt, a spokesman for the company. “It’s our policy,” he noted.
Some blanket policies, however, have come under fire nationally, and some states have even passed legislation to limit or ban certain background checks in employment.
“It can lead to discrimination,” said Kathleen MacRae, executive director of ACLU Delaware, about indiscriminate background checks, which can adversely impact minority because of higher incarceration rates and higher rates of credit issues. “It creates a whole pool of people that become unemployable.”
Indeed, on a national level the Equal Employment Opportunity Commission has made curbing such employment reviews a top priority.
“As a general matter, the use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, color, national origin, religion and sex) because it can have a disparate impact on certain racial and ethnic minorities whose arrest and conviction rates are greater than other groups,” said Christine Nazer, a spokeswoman for the EEOC. “Having shown a disparate impact, an employer can justify its policy by showing that it was job-related and required by business necessity, and that no other less-discriminatory alternatives existed.”
She said there are three factors employers must consider:
- the nature and gravity of the offense;
- the time passed since the conviction or completion of the sentence;
- the nature of the job in question.
(For the EEOC complete guidelines on criminal checks and employment: click here)
As for credit history reviews, she continued, “the EEOC is concerned that excluding people with poor credit may exclude qualified job seekers and some minority groups, and therefore may be discriminatory under civil rights law. Employers need to show that the use of credit records is job-related and consistent with business necessity.”
The ACLU’s MacRae believes the use of such reviews is on the rise because technology has made it so easy and so cheap to dig up such information on applicants.
And Margaret M. DiBianca, an attorney who represents employers for Young Conaway Stargatt & Taylor in Wilmington, added that with so many job applicants today because of the tough job market, employers are using these background checks in order to easily weed out some candidates.
However, she noted, that approach could backfire. Since there are so many people out of work and as a result many have less than perfect credit histories, potentially good candidates could be overlooked. “It’s a double-edged sword,” she added.
MacRae and DiBianca said there were unaware of any movements in Delaware to pass legislation that would limit the use of such reviews.
“Under current state laws it perfectly legal,” said Robert Strong, Deputy Principal Assistant at the Delaware Department of Labor, about credit and criminal background checks.
But for last four or five years, there’s been significant push back in other states and municipalities, including neighboring ones.
Earlier this year, Philadelphia passed an ordinance precluding city agencies and private employers with more than 10 employees from conducting criminal background checks before an initial interview. That law also prohibits employers from requiring applicants to disclose or reveal criminal convictions until after the application process and initial interview are completed. Employers required by law to conduct background checks are exempt.
Many cities and towns, and several states have enacted similar laws limiting background checks for government employees, but only Massachusetts and Hawaii have passed laws like the one in Philadelphia extending those limitations to private employers, according to the Society for Human Resource Management.
As for credit background checks, under the Fair Credit Reporting Act, employers have to ask permission of job seekers before they can run such reports; and some states have actually moved to ban these reviews.
To date, four states, Hawaii, Illinois, Oregon and Washington, have passed laws restricting such reviews and 18 others, including the District of Columbia, have introduced legislation to do so, according to the National Conference of State Legislatures.
“It’s a byproduct of the digital age,” said the ACLU’s MacRae about the growing use of such reviews. “Our laws and our culture have not been able to keep up with the changes.”