Background Checks: What’s Acceptable vs. What’s Considered ‘Murky’

Businesses are encouraged to be sensitive to privacy rights and issue during background checks, but where is the line?

By Fiona Soltes

Today’s tight job market creates all sorts of challenges—including the issue of background checks.

Include them, and possibly scare off otherwise suitable candidates? Avoid them, and risk a problematic hire? And what of the often murky waters of privacy, balanced with protection?

“The conversation about background checks is changing,” explained Rosaria A. Suriano, Esq., of Brach Eichler LLC. “The whole employment arena is changing.”

Employers have been encouraged to be sensitive to privacy rights and issues, said Suriano, who represents clients that are involved in the material handling industry. Consider the recent grassroots and legislative efforts to “ban the box,” or prevent employers from asking potential hires about criminal backgrounds. The idea is to give ex-offenders a better shot at employment.

“On the other hand, the workplace has become more and more demanding,” Suriano said.  “It is essential to find employees who can handle the dynamics of increased levels of communications, meet client challenges and not cause issues in the workplace. How does one balance the cost and the risk?”

Analytics software company Burning Glass Technologies recently reported that fewer employers demanded background checks in 2017 than in previous years—and the trend was especially pronounced in lower-skilled jobs. In 2017, for example, 14.1 percent of job postings for laborers/warehouse workers required background checks; in 2012, that number was 16.6 percent. In the same time period, requests for operations managers/supervisors dropped from 10.4 percent to 7.2 percent, and for janitors/cleaners, from 21.2 percent to 16.6 percent.

“Some occupations, however, have seen demand for background checks increase—mostly skilled positions,” the company reported in a January Labor Market Analysis piece on its site. “It’s possible that employers see low-skill jobs as less risky compared to high-skill jobs, where workers might have access to sensitive information or company accounts.” Increased requests were seen, for example, for business development/sales managers, electrical engineers, human resources managers, graphic designers/desktop publishers and manufacturing engineers.

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