Background screens are providing organizations with the tools to hire the best candidates for the job.
By Christa Elliott
Once the applications are in and the pool of prospective has been narrowed, HR departments rely heavily on background screening to look for red flags
in their top candidates’ pasts. But today, a number of factors, including relevant legislation and pressure to reduce time to hire are challenging background service partners to deliver more. Ban-the-box laws will make it harder to eliminate certain candidates early on and the U.S.’ ever-evolving and variable marijuana legislation is forcing employers to rethink their attitudes toward marijuana use. Amidst all of this controversy, the background screening industry is caught in the middle.
Considering all of these complications, the role of the screening provider is more important than ever in helping organizations navigate the current industry landscape to reduce risk, maintain compliance, and most importantly, hire the best candidates.
The “Ban-the-Box” Movement
The Fair Criminal Records Screening Standards Ordinance or “ban-the-box” ordinance dictates that employers can no longer require applicants to check a box during the first-round application process indicating whether or not they have committed a felony. This legislation has already been enacted by dozens of cities and states around the U.S., but even in places where it hasn’t, many employers are choosing to make the switch -sometimes with encouragement from their screening provider.
“I think in the next five years, we’re going to have the totality of the states passing ban the box,” says Brian Chapman, CEO of screening provider MBI. “In a lot of states, they’re passing it in government first, and in the second year after, they pass it with private employers. So, what we’re telling all of our customers and HR people, is to just get rid of the question. It makes it a little more painful on their end -they have to process more people, it’s more time-consuming -but it gives the opportunity for the applicant [who has been convicted of a felony] to explain what happened.”
Experts believe that to do away with the box will continue to become more commonplace, but this does not necessarily mean that organizations will stop asking about applicants’ criminal histories. On the contrary,
the question will continue to come up in later phases of interviewing, and it will be up to the employer to decide what to do with the information.
What ban-the-box laws will likely do, however, is change the point at which screens are conducted and increase the number of conditional offers extended to candidates. Fred Giles, senior vice president of strategic initiatives for Cisive, also believes that this legislation will cause regulators at all levels to more closely scrutinize how employers evaluate criminal records.
“If they are not already doing so, companies will move their background screening programs to be conducted after a conditional offer. Even before the growth of the ban-the-box movement, most companies had already made that move,” he says.
“Fair Chance or ban-the-box laws are intended to prevent a permanent class of unemployed individuals, who might otherwise be denied access to the job market due to convictions that might not be relevant, recent, or serious enough to create significant risk to the employer. Training for recruiters or other hiring managers will have to reinforce how to conduct a complete assessment of the individual candidate to make appropriate hiring decisions.”
This training is especially important in light of recent concerns that ban-the-box laws might ironically result in more discriminatory screening practices. Specifically, critics of the legislation worry that without the ability to know about criminal history early on, some HR practitioners may resort to “guessing” which candidates have a criminal history based on factors such as race and education level. To prevent ban-the-box backlash, it is critical for leadership to establish best practices for selecting candidates under the new policy. Creating these best practices might involve:
- Emphasizing the value of diversity in hiring;
- Creating a process for reviewing interviewee selections to ensure that discrimination doesn’t occur;
- Reassuring hiring managers that they can safely ask about criminal histories during the interview process; and
- Clarifying which felonies are most concerning to the employer.
Varying Marijuana Legislation
Similarly, many organizations are now reevaluating the relevance of marijuana-related convictions during background screens, and some are even omitting marijuana from mandatory pre-employment drug tests. This is the direct result of changes to legislation surrounding marijuana, both for medical and recreational use.
Medical marijuana is now legal with a prescription in the following states: Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, and Vermont. Meanwhile, Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington have gone a step further and legalized marijuana for recreational use, allowing residents to carry as much as two ounces without a prescription in some states.
Despite these changes, the fact that marijuana is still an illegal substance according to federal law complicates things for organizations -especially those that operate in multiple states.
“The challenge for employers is that presently, federal law states marijuana is an illegal substance. A person that has a prescription or legal right to use marijuana
by local or state law will still be in violation of federal law and test positive for being under the influence of the substance on-the-job,” says Steve Millwee, president and CEO of SecurTest. “Employers, to help avoid the legal landmines, should use legal counsel.”
Millwee also believes that even if marijuana becomes legal nationwide, the change will have little bearing on existing workplace policies.
“Employers and HR have a duty to protect the public and coworkers. Employees under the influence of any substance create risks. One can argue that marijuana is no different than alcohol, but employers generally prohibit use of alcohol on the job.”
So, organizations need not worry that they will now be dealing with intoxicated employees or dips in performance or productivity as a result of legalization.
The Need for a Shorter Time to Hire
One of the biggest concerns with the legislations mentioned above is that they prevents organizations from “screening out” candidates early on due to marijuana use or previous criminal convictions. This, in turn, means that HR has to screen more carefully later in the hiring process in order to narrow down their pool of candidates, making the entire process more time- consuming.
As if this wasn’t problematic enough, research shows that when it comes to background screening, HR is most concerned with how long the process takes. According to HireRight’s Employment Screening Benchmark Report, 62 percent of employers said that they planned to invest in finding qualified candidates in 2017 -this was the number one response for planned investments. But, in the same report, respondents indicated that reducing time to hire was their greatest background screening challenge.
Although ban the box and other policy changes in some ways complicate the hiring process for employers, many are still optimistic about what an expanded talent pool will mean for the future of recruiting. John DeMaris, director of legal services for Medical Solutions, is a proponent of ban the box, and his organization has already enacted the policy company-wide.
“These policies may end up impacting time to hire, but if job skills and prior experience are the focus of your screening, thus giving more talented applicants an equal chance to compete, that makes it a worthwhile endeavor,” he says.
Both organizations and those affected negatively by former drug and crime screening policies stand to gain from these changes, and research shows that the American economy may bene t as a whole. In one study, economists estimated that because people with felony records and the formerly incarcerated have poor prospects in the labor market, the nation’s gross domestic product in 2014 was reduced by anywhere between $78 and $87 billion. Organizations should work internally and with their screening providers to find ways to support fair hiring while keeping time to hire as short as possible.
Rescreening on the Rise
Another trend that has sparked debate within the 
HR community is the decision to rescreen existing employees. Internal threats such as embezzlement, sexual harassment, theft, workplace violence, and cyberbullying have put HR practitioners on high alert and compelled them to implement policies to detect and prevent problems early on.
Earlier this year, a senior exec for The Arc -a Hawaii non-profit that serves children and adults with intellectual and developmental disabilities -allegedly stole nearly $6 million from the organization. Could this crime have been prevented by a rescreening? It’s hard to say, but that is the strategy that many employers are now adopting to deal with such issues. Even so, rescreening may not be the right choice for every employer or worker classification.
According to Giles, the highest adoption rate of rescreening practices is in the financial services and healthcare industries, but companies outside of these industries may rescreen for positions with fiduciary responsibility; purchasing or signing authority; access to sensitive data; responsibility for intellectual property (IP); and positions that involve driving any vehicle (company-owned or not) on company business.
Samuel Jewelers is one example of a company that chooses not to rescreen employees. Instead, it takes a preemptive approach and focuses on airtight security and safety measures in all of its stores.
“I am not sure that rescreening is a cost-effective practice. The money that a company will spend versus the risk, in my opinion, does not have a good ROI,” says Cindy Bradley, the company’s vice president of HR. “It is the employment practices that a company has in place regarding safety and loss prevention that will make a difference.”
Others apply rescreening on a case-by-case basis, and Cisive’s Giles has a more stringent outlook on screening.
“Every company has positions that should be rescreened, but not all positions in a company need to be rescreened,” he says. “The scope and frequency of the rescreening may vary by position. Senior management needs to identify potential risk, and manage to that risk. Questions need to be asked like, ‘If a particular employee were to be convicted of X offense, what would the risk be to other employees, our customers, our shareholders or our brand should that employee be involved in an incident while employed?'”
When considering all of these policies, screening partners can be an incredible asset, not only in helping HR navigate the resulting obstacles, but also in learning about the latest trends in the industry.
“There’s so many changes to the industry coming out so fast that HR can’t keep up,” Chapman explains. Chapman recommends that organizations schedule monthly or bimonthly calls with their screening providers in order to stay abreast of upcoming trends and the ways that they will impact background checking in the future. Only then can the company successfully mitigate risk and get the information they need in a timely manner.
