Fine Tune Your Criminal Background Checks

Christine L. Peterson, CPP, ISPBackground Investigation, News


Background screening is an essential tool in today’s business. Choosing the best candidate for the job requires due diligence on the part of management. An effective screening policy protects the business, its assets, and ultimately increases a positive return on the investment.

We recommend a policy that is flexible but non-discriminatory because it aligns the scope with the position. The greater the fiduciary responsibility, the more in depth the scope of the screening should be. A professional position should usually require a deeper level of verification and investigation than an entry level position.

One area that is a gap for many companies is screening at the executive level. Companies often assume that the person could not have reached C-level based on false or inaccurate information. This is a false assumption. This not only poses a serious security gap for the organization but it also often leads to a public relations nightmare.

We advise our clients that an effective background screening policy is an insurance policy that provides a measurable return on investment in better hires, less turn over, protected assets, and a safer, happier workforce. What is your background screening policy?


Fine Tune Your Criminal Background Checks

By Hughes Pittman & Gupton, LLP

Does your company use criminal background checks as a way of weeding out job applicants? Many businesses routinely perform criminal background checks on some or all of the individuals applying for jobs. In fact, many companies are required by law to conduct background checks for certain jobs.

However, be aware that the existence of a prior arrest doesn’t give your firm carte blanche to turn down an applicant without hesitation. The recent settlement of a claim filed by the Equal Employment Opportunity (EEOC) against Pepsi Beverages illustrates some of the potential risks involved with background checks.

In the case, the soft-drink conglomerate agreed to pay a $3.13 million settlement based on racial discrimination charges related to its hiring practices.

The EEOC maintains that using arrest and conviction records to deny employment is illegal if it isn’t relevant to the position being offered. A blanket policy against such individuals can limit job opportunities for minorities who have higher arrest and conviction rates than Caucasians.

In its investigation of Pepsi Beverages, formerly known as the Pepsi Bottling Group, the EEOC reported that more than 300 African-American individuals were adversely affected when the company applied across-the-board criminal background checks.

“Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense,” according to the EEOC.

Use of this policy, the EEOC argued, disproportionately excluded African-American applicants from permanent employment. It also stated in a press release that the policy violated Title VII of the Civil Rights Act of 1964.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office, in a prepared statement.

“We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII,” Schmid added.

Since the investigation was initiated in 2006, Pepsi has adopted a new criminal background check policy and now plans to offer available jobs to those who were harmed by the prior practice, as long as they are still interested in positions at the company and are qualified for the openings. The money from the EEOC settlement will be divided equally among the job applicants who were denied employment while the prior policy was in effect.

According to a Pepsi spokesperson, the new policy takes a more “individualized approach” in considering an applicant’s criminal history relative to the job being sought in an effort to “…create a workplace that is as diverse and inclusive as possible.” The company has also agreed to provide the EEOC with regular reports on its hiring practices and to provide nondiscrimination training to its hiring personnel and managers.

Employers Walk a Fine Line

Employees with criminal backgrounds are not a protected class under federal law. However, employees may use Title VII to demonstrate that discrimination against criminals in hiring disparately impacts a certain protected class.

In some cases, employers are required by law to conduct criminal background checks for certain jobs. For example, Under the U.S. Patriot Act, truck drivers with commercial driver’s licenses must undergo criminal background investigations in order to be eligible for a hazardous materials endorsement.

Even if background checks are not required, many employers routinely perform them because they are concerned about violent behavior, theft and other potential threats. If an employee commits a violent act and the employer did not conduct a background check, the employer could be facing a lawsuit and be liable for substantial damages under a “negligent hiring” claim.

Despite all the challenges and responsibilities, an employer’s policy on criminal background checks must be fine-tuned to withstand potential challenges from the EEOC. Work hand-in-hand with your attorney and HR advisers to establish a policy that meets your organization’s needs while complying with all applicable laws.


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Protus3 specializes in security system design, security consulting, corporate investigations and other investigative services. Partner with Protus3 and we will examine each situation to identify threats and develop solutions for your best outcome.

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