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A prominent aspect in companies’ hiring processes has always been checking the criminal history of a potential employee, the standards of which having recently become fairly complicated.

Criminal background checks have become a custom for many businesses, as the goal to hire hardworking, trustworthy employees is everlasting. However, the degree of acceptance varies from company to company. Some may excuse misdemeanors as nothing more than a simple mistake in a person’s criminal history, while others may view that as a hindrance to their work ethic; the former beginning to outweigh the latter, as more and more states are adopting “ban the box” laws, opting to remove the section of employment applications that require the applicant to state whether he or she has ever been convicted of a crime entirely.

While this may seem like a step in the right direction for job seekers limited by their criminal backgrounds, new research finds that these laws are actually worsening racial discrimination in the hiring process. Some companies are now attempting to compensate for this change by simply relying on the applicant’s name when deciding whether or not to follow through with hiring him or her, thus overriding the delay in checking said applicant’s background. This flawed, and arguably immoral strategy has led to skewed numbers, in that African-Americans have seen a decrease in employment since “ban the box” laws, yet white people are receiving higher callback rates.

Because of this increased pressure on employers, the potential for lawsuits is on the rise. Aside from discrimination laws, if a company fails to properly adhere by the Fair Credit Reporting Act when obtaining criminal records, they could be at risk of being sued by the applicant. It is highly recommended that HR departments regularly review their hiring practices with employment attorneys in order to avoid possible legal punishment.

A new trend finds employers straying away from fixed rules that state which convictions bar people from certain jobs in order to fairly assess those with criminal backgrounds, while avoiding discrimination. This is done by having the Human Resources department individually evaluate otherwise-qualified applicants who have criminal backgrounds. Another safe strategy being used by employers is having outside vendors search an applicant’s criminal background. Allowing a company that specializes in vetting to conduct background checks can provide employers with much more thorough and accurate results.

It’s also very important to look at this history of background checks when considering the recent increase in complexity, and how quickly laws have changed throughout the years. Up until 1975, companies routinely turned away applicants with any criminal record. This brought forth “Green factors,” named after the case of Green v. Missouri Pacific Railroad Co. in 1975, which required companies to weigh three factors when assessing those with criminal backgrounds: The nature of the crime, the time that had passed since the crime was committed, and the nature of the job. These changes in background checks paved the way for stricter, yet fairer requirements in an employer’s decision to hire or deny its applicants.

 
The challenges that come with looking into the criminal history of an applicant continue to grow. While attempting to remain fair in the hiring process, many companies are still accused of being discriminatory in what many argue is a moral decision with the rise of “ban the box” laws. There is never any guarantee that hiring an applicant with a criminal background will work out in the company’s favor or not. As laws begin to crack down on the manner in which companies access this information and who they choose to hire versus who they turn away, it is becoming much more difficult for employers to set definite standards to abide by when conducting criminal background checks.