Do people with otherwise clean criminal backgrounds suddenly perform criminal acts? Should companies be able to predict this behavior and take actions to protect their customers, workforce, and public at large? Where does employer liability end and individual liability begin?
Questions about the predictive value of background checks and in particular, criminal background checks, have hit the news recently and this news can bring up many questions in the minds of employers.
A troubling fact about criminal background checks that employers and really everyone has to come to grips with is, while the majority of convicted offenders are repeat offenders, many crimes are still committed by people without prior criminal records. Nearly 30% of all federal criminal offenders are “true” first time offenders according to the United States Sentencing Commission. In other words, an employee who passes a criminal background check does not mean they are absolved of ever committing a crime. And depending on how far back your background check looks, it might even miss prior conduct.
Still, the past really can be a strong predictor of future behavior.
Despite the fact that people do commit crimes for the first time, the rate of recidivism in this country cannot be ignored. According to a 2005 Bureau of Justice study, about three-quarters (76.6 percent) of released prisoners were rearrested within five years of being released. Crime in America.net suggests the criminal justice system is dominated by individuals with multiple arrests and multiple convictions. In other words, looking at an individual’s past can help you predict their future behavior.
We could write circles around the limitations and still valuable role of criminal background checks in the employment screening process. Employers must perform these checks as part of a due diligence process to keep clearly dangerous or risky people out of certain roles. Imagine the reaction if it was discovered that your company did not even look into the criminal history of a person who then went on to commit a dangerous crime while on the job. The fact is, it is an employer’s obligation to run background checks to help avoid negligent hiring and enhance public safety. But employers must also recognize the inherent limitations of a screening modality that can only look at past behavior. Just because a person does not have a record today doesn’t mean they won’t have one tomorrow.
In our minds this is a bigger picture issue of human capital risk management that every company must consider. Criminal background checks are just one layer of what must be a multi-layered approach to risk management and background screening. Screening should involve comprehensive look at an individual, including reference checks, assessments, verifications, and other types of background checks.
In the end, it’s about keeping an eye in the rear view mirror while looking at the road ahead. People can and do change. Both for the better and for the worse. As an employer, it’s your job to find those people most likely to help your organization meet its goals while contributing to the safety of your workplace. Background screening is one way to accomplish this.