A recent story from The Charlotte Observer about an ex-felon hired to work at a cafe who allegedly killed a pregnant cafe manager by fatally stabbing her during a robbery demonstrates the need for small businesses to perform background checks, as well as the risks taken when hiring employees with criminal records or the exposure to legal liability faced when failing to conduct thorough background checks on job applicants. The Charlotte Observer story ‘Killing puts background checks in spotlight’ is available at: http://www.charlotteobserver.com/2012/01/28/2965684/killing-puts-background-checks.html.
The Charlotte Observer reports that state records show the 22-year-old suspected killer was released from prison in November 2011 after serving nearly two years for robbery and breaking and entering. He is accused of stabbing the pregnant 25-year-old cafe manager to death and prosecutors say he will also be charged with a second count of murder for the woman’s unborn child. The cafe in south Charlotte, North Carolina faces possible fines or other penalties from the Alcohol Law Enforcement (ALE) division for hiring the ex-felon since a state alcohol law does not allow businesses to hire felons convicted in the last three years for jobs that involve serving alcohol.
According to the Observer report, the Cafe’s owner told ALE agents that no background check was performed on the suspect, even though he had acknowledged a past conviction during his interview, although it is unclear if the owner knew the nature of the conviction. The Cafe worker was convicted in 2009 of robbing a drive-in restaurant where he worked and was put on probation for the crime but then sent to prison after being charged with breaking and entering, the Observer reports in a related story available at:
The president of a Charlotte-based human resources group The Employers Association who was interviewed for the Observer story said many small businesses “just don’t think about background checks, or say they don’t have the money.” A survey of The Employer Association’s roughly 900 member businesses revealed that while 90 percent of large companies with 500 or more employees in the Charlotte region performed pre-employment background checks, only about 20 percent of small businesses with 20 or fewer employees said they conducted background checks.
If small businesses choose to perform background checks on job applicants, they need to be aware of the U.S. Equal Employment Opportunity Commission (EEOC) guidelines on how employers may use criminal records that makes the use of a blanket “no hire” policy that excludes job applicants with a criminal history unlawful under Title VII of the Civil Rights Act of 1964 since it discriminates against minority groups with higher rates of criminal convictions.
Employers must also show that they considered the following three factors to determine whether a decision not to hire an applicant due to a criminal conviction was justified by business necessity:
The nature and gravity of the offense or offenses;
The time that has passed since the conviction or completion of the sentence, and;
The nature of the job held or sought.
The EEOC – the agency of the U.S. Government that enforces federal laws prohibiting employment discrimination – continues to hold that where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII. Employers need to ensure compliance with EEOC guidelines concerning the use of criminal records when performing employment screening background checks. The EEOC guidance regarding the use of arrest and conviction records in employment is available at: http://www.eeoc.gov/policy/docs/convict1.html.
The fact that criminal background checks of job applicants by employers are coming under greater scrutiny by EEOC is the number one trend in the Fifth Annual Employment Screening Resources (ESR) Top Trend Trends in Background Checks for 2012. To view the full list of 2012 trends, visit http://www.esrcheck.com/ESR-Top-10-Trends-in-Background-Checks-for-2012.php.