July 28, 2021
Kit Fremin
You’ve just received a background check on a potential new employee and the check
shows negative information on your applicant that you were unaware of. It could be a
criminal record or a previous job where the person was fired or performed badly. What
do you do now?
If you are an individual, small business or a business that does not have a written
procedure for handling a negative report on a background check you may be in
uncharted waters as far as what you should do next.
First, know your rights as an employer and secondly, you should also understand and
respect the rights of the applicant whose job offer you are about to rescind. Since I am
not an attorney (my daughter is) I am not going to pretend to give legal advice on this
subject. Do an internet search on Employer’s rights and Employee’s rights and you will
find a wealth of resources to educate you on the subjects. Be sure to look up guidelines
specific to your state as they are different from state to state.
Assuming that you have a negative report that the person has committed a crime in his/
her past, what is your next step?
After researching employment law there are four main things I suggest that you should
consider with regard to negative information on a background check:
1. How long ago was the incident?
2. How severe was the crime?
3. Did the applicant tell you about it before you found out in the background check?
4. Does the crime have a direct or substantial bearing on the business you are in or
on the job the applicant will be performing?
Let’s take a look at each of these questions in more detail.
How long ago was the crime? If the applicant was an ax murderer I hope it was a long
time ago. Did the person pay his/her debt to society? Is he/she on probation? Serious
crimes (to me) require serious time to pass before a person can be restored to their
previous standing in society. And we are assuming here that the person has been
rehabilitated and that the illegal behavior is not still happening. You might want to look
at how the person’s life has changed. Is he/she married or otherwise established in the
community? Do they have a steady job, own a home, etc.
How severe was the crime? I like to think of the severity of the crime and the time since
the person did it or was engaged in that sort of behavior, in a matrix. For example: a
severe crime hopefully happened a long time ago and a minor crime could have
happened more recently. Recent severe crimes are hard to overlook, but minor crimes
can be forgiven after a relatively short time has passed.
Did the applicant tell you about it before you found out in the background check?
We do a lot of background checks for churches and churches are in the business of
forgiveness, but the critical first element in forgiveness is confession. Or to put it another
way, confession is the sine qua non (without which not) of forgiveness.
If a person tells me about a problem (criminal history or fired from a previous job) in
their past I am infinitely more likely to forgive them than if I found out as a result of a
background check. Let’s say that a person was arrested, charged and found guilty of
shoplifting something minor a couple of years ago. The law says that that person is a
thief. If that person doesn’t disclose their criminal history then they are now, to me, a
thief and a liar.
Does the crime have a direct or substantial bearing on the business you are in or on the
job the applicant will be performing?
Is your business a rock quarry or a daycare facility? Obviously, it makes a big difference
in the type of people you hire. Correspondingly, a person’s criminal history or lack
thereof can be a vastly different consideration depending to the job they will be
performing.
If I were hiring people to work in a daycare center or a church nursery, I think that I
would pretty much have a zero tolerance on any kind of crime or even arrest (with no
conviction). Conversely, if I am hiring someone to do difficult physical labor outdoors do
I really care much about his/her past?
The Law Many Businesses Break
According to the Fair Credit Reporting Act (the law which governs background checks)
you are only allowed to rescind an offer of employment if a person is guilty of a crime
and not that he/she was arrested for an alleged crime.
Most employers want to see a person’s whole record, not just the criminal convictions.
According to the law, they are not supposed to make a hiring decision based on a
person’s police arrest, but only if they are found guilty of a crime. If a person, for
example, is arrested for a couple of times for drug paraphernalia, any logical person
would assume that the applicant has a drug problem whether or not they have been
convicted of that crime in spite of the fact that under the law everyone is innocent until
proven guilty. And that means TOTALLY innocent, not just “sorta, kinda, but you and I
know he is really guilty, wink, wink” kind of innocent.
Bonding (No, not the hugs kind.)
You may want to look into getting what is called an Employee Dishonesty Bond. It is
basically an insurance policy that protects you against financial losses due to fraudulent
actions of an employee or employees.
I had a client, years ago, that wanted to hire an accountant who they knew had a felony
conviction for embezzlement. I thought they were crazy to even entertain the notion of
hiring someone like that. The client told me that the accountant would not have access
to money and that his job would only involve budgeting and financial forecasting and
taxes. They asked for my advice, which I very seldom give, and to make a long story
short, I suggested that they have him bonded at his own expense. That seemed like a
fair solution to me.
Kit Fremin is the owner and founder of Background Check International. Since 1994 BCI has served
clients a varied as: the LA Times, Department of Defense, Mars, Inc., the UN, the NTSB and Calvary
Chapels nationwide. His website is: www.bcint.com and he can be e-mailed at kit@bcint.com or phoned
at 951-691-1088.
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