“The past is never dead. It’s not even past,” William Faulkner once wrote. Some job seekers learn that lesson the hard way, when a background check turns up a previous offense that costs them an employment offer.
Virtually anyone who looks for a new job in the U.S. can expect to undergo a criminal background check at some point. Nearly 70% of employers say they always research a prospective employee’s criminal history, and another 18% say they do so for certain candidates, according to the Society for Human Resource Management.
In many cases, those checks make sense. Few people would object if a company declined to hire an accountant who’s been convicted of embezzlement, or a truck driver with a drunken driving record. Yet unquestioning reliance on background checks also leads to qualified people losing out on much-needed job offers, according to a report in The Atlantic.
Many background reports contain mistakes or misleading information, causing people to be rejected for jobs based on crimes they never committed, arrests that never resulted in a conviction, or offenses that aren’t correctly reported (misdemeanors that show up as felonies, for example). The problem is especially acute for people of color, who are more likely to be arrested than people of other races, The Atlantic notes. Even people who’ve had no contact with law enforcement could find it difficult to get work if they share a name with a criminal. Old mistakes can also continue to haunt job applicants for years, even if they’ve had a spotless record since.
The Atlantic highlighted the case of a 59-year-old woman who was close to receiving a job offer to work as a caregiver in a group home, a position she was well-qualified for based on her previous work experience. But the application process stalled when a background check turned up two decades-old misdemeanor convictions, one for a DUI and the other for a welfare fraud conviction that stemmed from failing to report an overpayment. The woman ended up not getting the job.
Criminals aren’t a protected class, and employers have a legal right to ask questions about the background of prospective employees. But applicants have rights too. Before a company does a formal check on someone’s criminal or credit history, it must first ask permission. If something in the report causes them to deny the applicant the job, the company must provide a copy of the report. The person also has the right to request that the company that put together the report correct any mistakes.
That’s an important protection, since mistakes are disturbingly common in background check industry, according to employee advocates. One of the most common errors has to do with an applicant being associated with another person with a similar name who has a criminal history. “Mismatching people based upon a name-only match is an unbelievably common occurrence across background screening agencies,” notes a report by the National Consumer Law Center (NCLC).
Misidentification happens because background check companies often match records based only on names or dates of birth, rather than more specific information like Social Security numbers. The NCLC highlighted the case of a man who was denied a job because he shared a name with a convicted rapist. The background check agency should have spotted the mix-up, since the rape in question happened when the applicant was four years old and the man convicted of the crime was still serving time in prison when the report was run. Other common errors include reporting expunged records, not including information about how a case was resolved (e.g., if a felony charge was reduced to a misdemeanor), and duplicating arrest or conviction records, so that it looks like the person has a more extensive criminal background than they actually do.
Yet the loosely regulated companies who run background checks on millions of Americans have little incentive to make the extra effort to confirm the accuracy of their reports. Recent legal challenges, including class action lawsuits against employers and background check companies who’ve produced erroneous reports, could change that. The Equal Employment Opportunity Commission (EEOC) is also suing two companies, Dollar General and BMW, because of problems with their background checks. In both cases, the EEOC claims the company’s screening processes led to discrimination against African-Americans.
With a substantial minority of Americans having some incident in their past that could be showing up on a criminal background check, there’s growing concern about the accuracy and usefulness of these reports. By age 23, roughly one-third of people have been arrested, according to a study published in the journal Pediatrics. Overall, 65 million people have criminal records in the U.S., according to the National Employment Law Project (NELP). While background checks can play an important role in protecting businesses and keeping employees and customers safe, they can also severely restrict opportunities for many, especially those who’ve committed minor offenses, reformed their lives, and are likely to be model employees.
Some state and local governments are taking action to level the playing field for job applicants. Virginia recently passed a law prohibiting government employers from asking about a job applicant’s criminal history except for positions where such information would be relevant, like those in law enforcement or child care. More than 100 municipalities now have laws that ban employers from asking about criminal convictions during the initial phase of the hiring process, says the NELP. Laws like these help people with a criminal past avoid future brushes with the law, advocates say.
“Stable employment helps ex-offenders stay out of the legal system,” according to Secretary of Labor Hilda Solis. “Focusing on that end is the right thing to do for these individuals, and it makes sense for local communities and our economy as a whole.”