Karen Kontras
Compliance and Quality Assurance Administrator

Are criminal background checks worth the effort given the new EEOC Guidelines on doing criminal background checks?

Ever since the EEOC released the new guidance earlier this year, it's no secret that employers are asking themselves: is conducting a background check more trouble than it's worth? If you've asked yourself this same question, you're not alone. In the face of ever-growing state laws, increasing federal legislation and the EEOC's discrimination lawsuits, it's no wonder employers are questioning the value of background checks. In this year alone, we have seen an unprecedented number of EEOC lawsuits, ban the box legislation, and - not to mention - the evolving controversy surrounding the use of social media. However, we cannot ignore the unparalleled, demonstrated benefits a comprehensive background check can have in the workplace.

In light of the new guidance, employers are encouraged to use this time to evaluate their current screening process and compliance programs. The guidance provides detailed recommendations on best practices that can be used to enhance your current hiring process. For instance, when evaluating an applicant with a criminal history, use individualized assessment by considering job relatedness and business necessity rather than operating under blanket policies. Consider such things as how much time has passed since the conviction, the facts surrounding the offense, age at the time of the conviction, number of convictions and whether they are bonded or can provide credible references. In other words, give the applicant a chance to discuss their situation rather than dismissing them too early in the process. While most employers already have some form of evaluation and assessment as part of their current process, it is only efficient if you are actively monitoring the process for compliance in accordance with on-going legislation and the new guidance. Although initially, this may require more work from employers, a thorough review will ensure a more compliant and efficient process, thus helping companies to reach their end goal: hire the best person for the job while minimizing risk.

Speaking of minimizing risk, consider this: criminal background checks are proven to help employers reduce turnover, prevent theft and fraud, reduce instances of workplace violence, and avoid negligent hiring. Take a look at some of the facts:

  • According to the Society for Human Resources (SHRM), the cost for employee turnover and replacement can be over $3,000.
  • According to the U.S. Chamber of Commerce, three out of four employees will steal from their employer; theft by employees can cost a company upwards of $20 - $40 billion dollars each year. What's more troubling is that 75 percent of employee thefts are never discovered.
  • The Occupational Safety and Health Administration (OSHA) reports that two million workers per year report incidences of workplace violence; according to the Bureau of Labor (2010), 17 percent of fatalities in the workplace were due to violence.
  • When it comes to civil lawsuits regarding negligent hiring, employers lost 79 percent of the time according to Public Personnel Management.

It's pretty obvious: the cost to conduct a pre-employment screen on a potential candidate, matched with time spent by human resources, etc., is minimal when compared to lost productivity, potential lawsuits and the threat of workplace violence. Today, more than ever, criminal background checks are an essential component of a successful business. So, it looks like the short answer to the question is yes, they are worth the effort.

Getting started and resources

The use of criminal background checks by employers should be conducted with the EEOC's concern of disparate impact discrimination in mind. To begin, document your background screening policies and procedures using the guidance's best practices. For resources, industry associations offer sample policies, however, be sure to have your legal counsel review before you put any procedures or policies in place. Documentation of your policies, procedures and applicant evaluations will assist in reducing the possibility of a negligent or discrimination claim.

Choosing the right background screening partner is an important component of your hiring process. Be sure to ask questions:

  • Are they only using a database search? The best solution is a comprehensive report that includes vetted and verified information.
  • Do they provide a consistent process? Select a screening partner that will ensure that your hiring process is consistently applied: applicants for the same job should have the same searches and investigations conducted. Different job types may require different levels of investigation, but for the same job title, make sure the process is uniform to avoid potential discrimination claims.
  • Do they keep you informed on the latest requirements and communicate often? Does your screening partner communicate adequately? Do they know your hiring process and offer advice that would help with screening, such as how the employment application is being used? For example, are they providing updates on changing state and federal requirements?


Most importantly, look for a company accredited by the National Association of Professional Background Screeners (NAPBS).