Bosses peek into job-seekers' pasts

Lying on job applications is not new. But these day it's getting harder to slip one by employers. Background checks, particularly criminal ones, are now almost de rigueur for big corporations. Eight years ago, 51 percent conducted them; now 80 percent do, along with 69 percent of small businesses, according to the Society for Human Resources Management.

What's driving employers' lack of trust is a confluence of factors: fear of terrorism and workplace violence; cheaper and quicker ways to check applicants' claims; and wildly expensive lawsuits if companies gets slapped with negligent hiring.

"The cost of performing [background checks] has never been lower. The cost of not performing them is at an all-time high," says Steven Rothberg, founder of CollegeRecruiter.com, an Internet career site. Wal-Mart Stores, the nation's largest employer, sealed the trend last month when it started doing criminal checks on all new hires. The company faces two negligent hiring suits, stemming from two separate assaults on girls by employees who were registered sex offenders.

Despite Wal-Mart's experience, few negligent hiring suits hang on undisclosed criminal records, says Debbie Mukamal, director of the National HIRE Network, a nonprofit that helps ex-cons reenter the job market.

"If you look at all the cases that went to court involving negligent hiring, very few of them involve someone with a criminal record," she says, citing research last year on 169 cases in New York State that found only 10 involved employees with rap sheets. Of those, defendants "won" five based on "lack of foreseeability on the part of the employer."

However, the effect on the growing ex-con community - now almost 4.3 million, according to the Bureau of Justice Statistics - is clear. In a tight job market, where background checks offer a quick way to winnow the list of applicants, those with criminal records are usually the first to be set aside.

Moreover, Criminal Offender Record Information (CORI) reports are not always accurate. The criminal justice system depends heavily on dealmaking, observes Tracie Gardner of the Legal Action Center (LAC) in New York City. "There could be a higher charge that could be pled down to something less onerous and more appropriate to the crime."

"Those kinds of nuances," she says, "are often not accurately translated to the criminal records that are commercially available."

One LAC client experienced this firsthand. He was turned down for a job at a record store on the basis of his "violent" criminal record. When the applicant asked to see the report produced by a private screening company, he found it listed 28 counts, including violent felonies, but failed to state he had only two convictions, both nonviolent, according to Ms. Mukamal.

"There's certainly an education that needs to go on for employers that the criminal record can be suspect and should be corroborated," Ms. Gardner says.

Criminal background records list arrests within the past seven years even if they didn't lead to a conviction. Judging a candidate on arrest history tends to penalize minorities, argues Jerry Hunter, a labor and employment lawyer with Bryan Cave LLP in St. Louis.

The US Equal Employment Opportunity Commission (EEOC), he says, "decades ago, took the position that making employment decisions based on arrest records could be discrimination under Title VII of the 1964 Civil Rights Act, because generally minorities are arrested at a higher rate than nonminorities." Even if a criminal report is accurate, the larger story that plays against ex-cons getting back into the job market is a growing sense among the public that rehabilitation is not effective, that prisons are simply holding pens. In recent years, many prison programs have been cut because of funding shortages. And the criminal justice system itself has shifted emphasis to punishment and away from a rehabilitation model, says Mukamal.

What that means for ex-cons, if they check the convictions box on the application, is that they are less likely to get an opportunity to "contextualize" their offense and explain its circumstances, Mukamal says.

But are employers more reluctant to hire ex-cons? Barry Nadell, president of InfoLink Screening Services in Chatsworth, Calif., doesn't think so. What they won't tolerate, he says, is lying.

He offers the example of an InfoLink client who called a couple of weeks ago.

"[The client] did a background check on a gentleman, through us, who was convicted of involuntary manslaughter. He explained that what happened was the person was riding on the back of his motorcycle and fell off and died and he got convicted," Mr. Nadell says.

InfoLink advised its client, who planned to hire the man, to confirm his story first.

"We went to the court, and guess what we found. His story was a lie. He killed a guy in a bar fight," Nadell says. If InfoLink had confirmed the applicant's story was truthful, the company would have hired him, he says.

This isn't the exception, Nadell adds. The number of felonies uncovered in screening people who have authorized a criminal background check in writing is a surprising 8.4 percent.

Lying is unnecessary, Nadell says. The law protects individuals, including ex-cons. The EEOC tells employers they cannot arbitrarily deny employment. They need to base their decision on three things: the nature and gravity of the offense; the time lapse since the offense occurred; and the job applied for.

The Fair Credit Reporting Act also protects individuals from unwarranted checks on personal information.

LAC advises ex-cons looking for work in the current job market, where even people who don't have a record are subjected to onerous vetting. They recommend to always be honest and to seek out community-based programs that have existing relationships with employers willing to hire people with criminal records.