Background Screening Expert and Thought Leadership Insights
Background Screening Insights, a Blog by Barry Nixon
W. Barry Nixon
Co-Author, Background Screening Investigations: Managing Hiring Risk from an HR and Security Perspective; Creator of the leading background screening information portal – PreemploymentDirectory.com; Publisher, award-winning e-newsletter, The Background Buzz, and
Mitigating screening bias on underserved communities: Key takeaways from a Neeyamo ‘Rise Above’ 2020 panel discussion
As communities across the country have been enmeshed in public demonstrations focused on social
justice and equality, the issue of racial bias in in the criminal justice system is especially germane. Both
the Professional Background Screening Association (PBSA) and Society of Human Resource
Management (SHRM) have reported that over 96% of U.S. companies conduct criminal record checks
and this process in many cases is instrumental in employers hiring decisions.
HR solutions provider Neeyamo invited Appriss Insights to be part of a panel discussion at its Rise Above
Global HR Evolution Summit this week to help CRAs and hiring professionals better understand and
address this significant challenge.
Here are some key takeaways offered by the expert panel:
Barry Nixon — Publisher of PreemploymentDirectory.com, The Background Buzz, and other
Krisy Bucher — Director of Marketing Programs, Appriss Insights
Lester Rosen — Founder and CEO, ESR Check
Rachel Theisen — COO, InCheck
A recording of the panel discussion is now available. Use promo code POPXRA2020 for free access to
this and other sessions.
Several weeks ago the article, How criminal background checks lead to discrimination against millions of Americans,’ by Sarah Lageson was published in Washington Post and it caused a bit of an uproar in the background screening community. Several prominent members of the industry posted comments very critical of the article choosing to focus on the aspects of the article which they felt misrepresented the background industry. I totally get where they are coming from, however, in my humble opinion, they missed the point of the article.
When I read several of the comments about the article it put me on the ‘horns of a dilemma.’ On one hand, I am very clear that I make my living by selling services to the background screening industry. At the same time, I am very uncomfortable with the role the industry continues to play as a contributor to perpetrating discrimination against underserved communities in our country and has made the conscious choice to turn a blind eye to this injustice. Please note, in my eyes, ‘doing nothing’ about a known problem is turning a blind eye.
As a person of color, despite the potential challenge to my livelihood, I cannot stand quiet on the sidelines and be complicit about this issue. I am reminded of the famous words of Dr. Martin Luther King,
“The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” We are at point of controversy in this country and I want history to note that I stood up for what I believe is right.
First, let me be clear about the injustice I am referring to. The background screening industry thrives on and makes money by providing information to employers to help them make hiring decisions. This information provided to employers includes information gathered about an individual’s encounter with the criminal justice system, e.g., arrest, booking and convictions, which are based on a Police officer’s decision. If the officer’s decision is based on racism the information from this encounter is then baked into the information that is collected and reported by background screening companies. This is no small matter because criminal records are by far the most prevalent type of background check conducted by employers.
It is well established by research that people of color, especially African-Americans and Hispanics are much more likely to have negative encounters with the criminal justice system. And, when this information is used in hiring decisions it potentially can lead to disparate treatment and illegal discrimination. As I am sure you will recall this was the genesis of the creation of the ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions’ in April 2012. The intent of these guidelines is to reduce the negative impact of the improper use of arrest and criminal records in hiring decisions. The issuing of the EEOC Guidelines should have been a wake up call for the background screening industry.
The National Background Investigations Bureau (NBIB) Could Deliver a Fatal Blow to the U.S. Background Screening Industry
If you read the February edition of The Background Buzz (see http://goo.gl/0iBHZ1) you likely saw the article, The Way Forward for Federal Background Investigations which discusses the U.S. Federal Government’s announcement of a series of changes to modernize and strengthen the way that background investigations are conducted for Federal employees and contractors and protect sensitive data. The changes include the establishment of the National Background Investigations Bureau (NBIB), which will absorb the U.S. Office of Personnel Management’s (OPM) existing Federal Investigative Services (FIS), and be headquartered in Washington, D.C. This new government-wide service provider for background investigations will be housed within the OPM. Its mission will be to provide effective, efficient, and secure background investigations for the Federal Government. Unlike the previous structure, the Department of Defense will assume the responsibility for the design, development, security, and operation of the background investigations IT systems for the NBIB. The article can be viewed at https://goo.gl/wIOe12
When I read about this the Criminal Records Bureau (CRB) which has morphed into the The Disclosure and Barring Service (DBS) in the United Kingdom instantly came to mind. In the UK the DBS is the governments entity that processes request for criminal records checks. While the announcement of the NBID is not the equivalent of the DBS, in my mind, it does not seem so far-fetched that based on the right (or wrong set of circumstances) occurring and unforeseen political events we could end up going down that road. Remember the set of unforeseen events that led to the creation of the NBIB due to the demise of USIS, who dominated the government space, as a result of accusations of fake reports, significant backlogs, missing key information in the background check of the shooter at the U.S. Naval yard and “the straw that broke the camel’s back” the humongous data breach at the OPM. It was a perfect storm of unanticipated events that coalesced and culminated in the creation of the NBIB.
I am raising a ‘What if?’ question regarding the NBIB and applying one of the principles of systems thinking’s ‘law of unintended consequences.’ The law of unintended consequences as defined by Businessdictionary.com is described as a set of results that was not intended [or anticipated] as an outcome or put another way as stated in an old saying “things do not always turn out as we expect.”
When I posted this same issue to Linkedin one person asked “What exactly was the issue I see the NBIB posing?” and I reiterate that I do not see NBIB in its current format significantly impacting the background screening industry. In fact, it will pose little, if any threat at all. However, the point I am raising is that it could be the first step in the direction of the government moving towards setting up a central repository for criminal records. This is not the reason the NBID has been set up nor do I think there is some clandestine plot to move in this direction, however, I am simply raising the possibility that another ‘political storm’ of unforeseen events could make it politically expedient to make the leap to combining the NBIB with the FBI’s NCIC and then you have the central repository. Its pure food for thought, but stranger things have happen.
Let me know what you think?
Data reported by background screening companies have consistently shown that 30 to 50percent of job applicants misrepresent themselves and/or outright lie on their resume. While there is universal agreement that applicants falsifying their resume is problematic the fact is that it is not illegal. However, hiring a person based on what is presented in their resume can lead an employer down the path to some very hot legal waters.
Consider the following:
Professional Licensing Issues
Your organization business could end up in getting sued if you hire an unlicensed professional or someone’s license that has expired to perform the professional duties in fields that require a license to practice and someone is harmed. Classic examples would be someone serving a medical doctor that is not licensed or providing legal counsel with a law degree.
Hiring someone who is unqualified to do a job is risky business, your customers or patients could sue you for negligence if they are harmed. Although you may be able to sue the person who lied, you will have to demonstrate that the lie caused your business harm and that you could not have known the person was lying (if you did not perform a background check ‘good luck’ with proving that)
Did you know that once you have discovered an employee lied on her resume, you might not be able to immediately fire her.If the employee has an employment contract or your state requires termination for cause, you may have to prove the lie or show that the employee is otherwise unqualified. Before you move to terminate the employee be sure to keep detailed and specific documentation of the employee’s performance short comings, mishaps and incidents. Also talk to the employee about the purported lie on their resume to provide them an opportunity to offer an explanation. If you falsely accuse someone of lying on her resume, you could be vulnerable to a wrongful termination suit and furthermore, if you end up in front of a jury it will look good that you gave them a chance to explain and who knows it might be your luck day and she actually admits it was a lie.
Pam Devata Shares Her Views on Issues of Concern and likely Future Issues
Pam Devata, is a partner in the Labor and Employment Practice Group of Seyfarth Shaw LLP. She specializes in all aspects of employment defense including counseling, training, litigation, and has a special emphasis on the Fair Credit Reporting Act (FCRA) and the state laws affecting background screening.
Employment Screening Advice for Employers
The New Frontier: Three Steps You Can Take to Improve Employment
By W. Barry Nixon, COO, PreemploymentDirectory.com
As the old saying says, ‘Desperate times call for desperate measures.’ Due to many factors like technology and unforeseen circumstances like the COVID-19 pandemic, the employment sector is changing rapidly. With the rising technology and many organizations preferring their employees to work remotely, it is clear that using old hiring techniques could harm a business. Your business needs to adapt fast to the changing environment to stay ahead and ensure it makes good hires with the skills required for the changing tasks and technology. Accordingly, the three steps to take to immediately improve your employment processes and ensure better business operations.
Adopt To New Hiring Techniques
New hiring techniques and background checks can never be overlooked anymore if you want to tap new talents. Having the right candidates for the job is important and crucial for business growth and success. To do this, you need to adapt to new hiring methods that ensure you have appropriately assessed each candidate through different candidate screening processes and background checks. Thorough hiring processes help you to identify the best talent that will fit your organization’s culture and perform at a high level.
New hiring techniques have emerged including aptitude and integrity tests, panel interviews, video interviews, use of artificial intelligence in screening resumes, online reference checks, remote onboarding, etc. These tools help you to more effectively screen applicants to find those jewels that will fit and excel in your organization.
It is not life as usual. The world of work has changed, and it is possible to find some employees trying to adapt to the new changes. Since working from home is new to many of your employees it is important for organizations to invest in training employees in time management to know how to manage distractions, ways to balance home and work duties, and key factors that will help them to stay productive while working from home.
You must also balance the need to ‘check on their work’ with the need to demonstrate you trust them to perform their jobs. In addition, a conscious effort must be made to continue to build relationships through effective communications with your employees that compensate for the lack of direct contact that people have grown accustomed to.
The pandemic has brought tough times and depression to many. Families are losing loved ones, while others struggle with the infection, stigma, and staying in unpopular conditions under self-isolation. Your employees could be affected directly or indirectly during this period.
To help them cope up with such difficult times, it is important to organize counseling sessions. Create time and bring in a professional who can take them through counseling sessions to make them stay positive and healthy to perform their duties.
Keep checking on each one of them at a personal level. This makes employees feel special and cared for at such challenging times.
As the employment sector is shifting to a new normal, it is critical to change with the circumstances. Adopting new technologies, engaging more with employees, and providing counseling sessions could help them stay productive.
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