Once upon a time in a land far away a business owner had the right to choose who he hired and how they went about vetting that prospective new employee. Some companies post job ads that ask specific questions of the applicants or lay out certain standards of employment such as; must have clean driving record, must speak English clearly, must have 3 years prior work experience, must have no criminal record, a resume and so on. If the prospective employee showed promise and produced a qualifying resume, a job application and scheduled interview were typically the next steps to follow.
As Americans became more aware and sensitized to the prejudice embedded in the process of determining who gets access to job opportunities, housing, loans, and education, a conversation began, laws were enacted, and the field of play slowly evolved, becoming more balanced as well as challenging to navigate. These changes were far from perfect, but certainly an acknowledgement of the implicit bias, failures, as well as an opportunity to make things better.
For historical perspective, the Clayton Act of 1914 guaranteed the right of the people to organize. The Fair Labor Standards Act of 1938 created additional protection for employees, such as the right to a minimum wage, and time-and-a-half overtime pay if employers asked people to work over 40 hours a week. Almost all the codes developed under the National Industrial Recovery Act served to reduce child labor. This all took place during the period in history known as the Industrial Revolution. But the real changes for most Americans didn’t come about until the 1960’s when access to higher education, print, radio and TV media became more accessible to all households. Bargaining in good faith, and representation by unionization gave rise to the Labor Management Reporting and Disclosure Act of 1959, Equal Pay Act of 1963 and probably the most profound changes in the Civil Rights Act of 1964.
While the 1970s saw its fair share of important federal employment acts, it took another 20 years for the American worker and fair labor practices to improve through the Family and Medical Leave Act of 1993. However as mentioned the Civil Rights Act of 1964, and specifically Title VII calling out discrimination based on race, ethnicity, religion, sex and national origin had the most profound impact. This went hand in hand with the Equal Pay Act, Age discrimination and Title I and Title V of the Americans with Disabilities Act of 1990. So much for the history lesson, but there’s more…
Fast forward to the summer of 1998, when Hawaii passed a law restricting employers from considering candidates’ criminal history until a job offer had been made. The state of Minnesota followed suit in 2008 and a nationwide movement was born.
“Ban-the-box” laws requiring employers to remove criminal-history questions from employment applications have been enacted in 33 states and more than 150 cities and counties. While primarily covering the public sector, ban-the-box laws also apply to private-sector employers, seeking to protect applicants and candidates convicted of a crime from automatic disqualification during the selection process. In some cases, employers can inquire or check for criminal history after first conducting an interview while others must wait until they’ve extended a job offer. As business owners trying to balance best hiring and negligent hiring practices, this new rule exposed employers to risks on both sides of HR process. The National Federation of Independent Business (NFIB) argues that ban-the-box laws unnecessarily mask relevant criminal-record information about prospective employees that could affect the safety and security of the business, its workers, and customers, as well as delaying the hiring process. “Ban-the-box” laws make it harder for employers to talk about a criminal record at a time during the hiring/screening process most suitable for that to be addressed. At a time when hiring costs have increased significantly, labor law compliance has become more challenging to keep up with, and qualified labor hard to come by, this has translated into hours, days or weeks going through the hiring process only to find a prospective worker is either unqualified or hiring a bad employee.
A recent case in point, Integrated Security Services’ investigative team was working on a personal injury insurance claim investigation when a contractor, being interviewed as a witness, referred to a laborer as “shady.” A subjective opinion, perhaps, but a door now opened to look further. The laborer/claimant in this matter, allegedly sustained an injury under dubious circumstances, which was the crux of this investigation. This witness characterization of the claimant as “shady” prompted our clients request to conduct a more comprehensive background investigation. At that point investigators at Integrated Security Services, using proprietary investigative tools, uncovered facts associated with the claimant criminal history, specifically his criminal conviction and felony record, resulting from a sexual /domestic assault. While this discovery may or may not impact the outcome of this insurance claim, imagine if this was a candidate for hire situation and this information went unknown to the employer of a daycare center, home aide or school coach?
As a business owner, Integrated Security Services with 27 years of hiring experience and a reputation as an honest and honorable employer of hundreds, if not thousands of security officers, found itself on the receiving end of a multimillion-dollar class action law suit filed in the State of California. This popular trend and lawsuit brought by a former well compensated security officer could have possibly been avoided had our hiring managers had the opportunity to conduct a comprehensive criminal records search, prior to onboarding this individual. The consensus here was that the State of California had already done their due diligence when they gave this officer a security license, an assumption that proved very costly. Worth noting because the security and safety industry is highly regulated with numerous pre and post license requirements in place. Sadly the California Bureau of Security & Investigative Services, [BSIS] licensed this former employee who was charged, convicted, and served a significant prison sentence for serious felony crimes.
While all damages economically have yet to be fully tallied, the impact on company moral from our leadership team down to our line staff has been easily measured and a testament to a broken system, and how one bad apple can taint a good company’s reputation.
The good news is all hope for the business owner has not been lost and many of these unbalanced hiring practices have gotten the attention of our lawmakers. In California, a state hardest hit by these biases, employee centric labor laws, is now seeing an aggressive movement to reform the Private Attorney General Act, (PAGA) and class action claims resulting from the same. Employee arbitration agreements, prohibited in some states, are once being upheld by the court and deemed legal to protect against frivolous lawsuits.
Companies like Integrated Security Services, with years of due diligence experience are available to conduct extensive background investigations during all phases of the hiring process. This is not limited to just database searches, which will uncover a wealth of information to validate a potential new hires character and job experience. Past employers can be canvassed as can neighbors and others associated with a prospective new hire to develop an accurate representation of one’s personal character. If the position you’re hiring for puts the employee in a position of financial trust or exposing them to high-net-worth tangible assets, a pre-authorized credit history check is not an unreasonable pre-hire requirement and one that may disclose an extensive poor debt to obligation history and high-risk candidate.
Let the seasoned team of investigators at Integrated Security Services put the business owner and HR manager back in the driver seat. Our background investigative solutions can be customized to address all your pre-employment screening needs and budget. No, we are not an online data only driven background screening service, our background investigations are managed by a dedicated staff applying proprietary tools and tradition investigative methods. All data is carefully evaluated and validated before any recommendations are conveyed to our clients.
For more information email us at info@intesecurity.com or contact our Investigative Division directly at 646-680-6058. All consultations are confidential and free of charge!
References:
https://en.wikipedia.org/wiki/United_States_labor_law
https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/ban-the-box-turns-20-what-employers-need-to-know.aspx
