EEOC Commentary Submission

August 5, 2011

     TO: Chair Berrien, EEOC

FROM: NCISS – National Council of Investigative and Security Services
           Jimmie N. Mesis, Legislative Chairman

     Re: Arrest and Conviction Records as a Barrier to Employment

NCISS is concerned with the unintended consequences likely to result from contemplated guidance revisions with regard to arrest and conviction records associated with employer background checks.

Our organization represents the interests of more than 60,000 professional investigators in the United States who conduct background checks on a daily basis. These background checks are conducted on behalf of employer’s who screen specific job applicants as a simple matter of due diligence based on the position applied for. Employers must insure they know who they are hiring in order to protect other employees, their customers, and company assets. Yes, this often includes searching for arrest and conviction records, which are just a few of many more factors used in evaluating and determining employment qualifications.

NCISS recognizes the commission’s concern that criminal histories may present a barrier to employment, but our background investigations also help to protect the lives of employees and customers. Employers are obligated to make every effort to insure the safety of their employees. Imagine the employer who did not conduct a criminal background check on an employee who has a history of workplace violence or who rapes a co-worker. A criminal search would have revealed a previous conviction for the same offense. A simple background check could have, at the very least, made the employer aware of said history in making an employment decision.

In addition, investigators are most often called to conduct background checks as it relates to a specific job position or the business necessity determined by the nature of the job applied for. The results of a criminal history background check are just one of many factors used to consider employment along with experience, previous employment history, education verification, certifications, and references.

The depth of a background check is determined by the risk level associated with the position applied for. In many cases, only conviction records are available as compared to an arrest record. When an arrest record is found the investigator will ascertain the disposition of the matter to determine if the case was dropped or resulted in a conviction. This is not the type of information one might acquire from conducting a Google search. In fact, such search engine searches may often provide dated or inaccurate information and are not deemed reliable unless independently confirmed, hence the reason for using professional investigators.

As a matter of reference, the Secure and Fair Enforcement For Mortgage Licensing Act - 12 USC 1501-1516 requires by federal law that financial institutions do backgrounds on all mortgage brokers as part of the licensing act. How would an employer comply with two conflicting acts?

In Illinois, private social service agencies are required by the Department of Children and Family Services to conduct background checks on employees who will be working with the developmentally disabled. Does the EEOC think that these applicants, along with coaches, school bus drivers, teachers, and those working with children shouldn’t be screened for criminal records?

In regard to fairness, if two similarly qualified candidates in terms of work experience are applying for the same job, should the person with a clean record be selected over the applicant who chose to deal drugs, commit thefts etc.? Is that any different than taking the candidate who has better grades in school or being the preferred candidate?

NCISS supports the needs of employers and their right to conduct criminal history checks and the role such checks serve in the overall screening process. Individuals with criminal records do have a right to work, but employers also have a right to know who they are hiring based on all available information.

Employers must take into consideration all factors when making hiring decisions. While a person’s past does not necessarily determine their future, their past does provide the employer with additional information to consider when doing the overall evaluation and selection.

The National Council of Investigation and Security Services, Inc., is a cooperative effort of those companies and associations responsible for providing private security and investigation services to the legal profession, business community, government and the public. For additional information, contact us at jim@nciss.org