The Monitoring Paradox

By Vince Pascarella, Esq., SPHR, FCRA-A, EVP & General Counsel, Wholesale Screening Solutions |

Paradox

Darn it, that job applicant seemed perfect on paper. He interviewed so well. She was recommended by a great long-term employee. All that stood between you and them was the background check. Unfortunately, this final step revealed something you didn’t expect to find.

What do you do? Should you call in legal? Do you even have legal? The applicant says this information isn’t true. What do you tell the hiring manager?

These are the thoughts that run through the minds of employers every time an unfavorable background check is returned.

And now that continuous monitoring is becoming a routine part of employment screening, this potentially makes these complications even more problematic for an employer. Now, you are contemplating an employee population, rather than that of applicants. Until recently, this has meant the basic monitoring of arrest/incarceration activity. An employee gets arrested over the weekend and you know about it almost instantly.

Let’s be candid with one another, please. The vast majority of employers simply do not want to know about an arrest. They rightly grasp that due process is (and should be) necessary prior to making an adverse employment decision. Our friends at the EEOC have provided employers with useful guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. That guidance is as follows:

 

Difference Between Arrest Records and Conviction Records

The fact that an individual was arrested is not proof that he engaged in criminal conduct. Therefore, an individual’s arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Several states’ laws limit employers’ use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. If you have questions about these kinds of laws, you should contact your state fair employment agency for more information.

 

Furthermore, some arrest data may lead to claims of discrimination. By way of example, alcoholism and drug addiction are protected disabilities under Title I of the Americans with Disabilities Act (ADA). An employer may not unlawfully discriminate in employment (hiring, retention, etc.) against an alcoholic or drug addict. And a non-alcoholic or non-drug-addicted applicant or employee can also prevail in a claim against an employer if they can show that the employer merely regarded them as an alcoholic or drug addict and unlawfully discriminated against them based thereon.

Some have suggested that arrest data is the most useful to an employer, because it is the earliest indicator of “trouble,” or stated another way, a “trouble-maker.” It’s also further suggested that knowing this information can allow the employer to “help” the troubled employee, not terminate them, which makes this ok. However, it is commonly known that information cannot be “un-seen,” meaning that once you know it, you are responsible for it. If the employee feels they are being treated differently, whatever form that may take, and knows you have been informed about their arrest, doesn’t the previous statement also begin to apply? And doesn’t the “trouble” then shift back to the employer?

To be useful for the vast majority of employers, a monitoring tool must have more information than arrest and/or booking-only data. It must include court proceedings dispositions, sentencing, etc. In other words; no court data, no solution.

Having arrest information about an employee as soon as possible seems like a good idea for any employer. More often it isn’t. Paradoxical, huh?

Vince Pascarella, Esq., SPHR, FCRA-A, EVP & General Counsel, Wholesale Screening Solutions
About Vince Pascarella, Esq., SPHR, FCRA-A, EVP & General Counsel, Wholesale Screening Solutions
Vince has been an attorney and executive in the enterprise risk mitigation industry since 1998. He is a licensed attorney, is SHRM certified SHRM-SCP and PBSA certified FCRA Advanced. Vince earned his Juris Doctorate degree from the University of Colorado School of Law and his Bachelor of Arts, magna cum laude, from Long Island University.