Criminal Background Checks: 3 Ways Employers Can Go Wrong


In April of 2012, the Equal Employment Opportunity Commission (EEOC) provided employers with updated guidance on the proper legal use of criminal background checks.  Background checks are continually targeted for increased scrutiny by regulatory bodies.  Have you ever wondered why?

Background checks are powerful tools of hiring knowledge.  They can efficiently guide hiring and retention because of the wealth of information readily available.  They are the most cost effective method of protecting your workforce and workspace.  Employers can get this information quickly and easily.

This power for good in the modern human resources field is the very reason that the practice of pre-employment screening has been under the legal microscope.  A tool this powerfully good can be just as powerfully bad.  This article will focus on three common mistakes that employers make in their pre-employment screening practices that can turn the whole process sour.  Each of these oversights can lead to catastrophe!

1.     Neglecting to Use “Best Available Means” – The quickest way to fail at screening applicants is to not screen applicants.  Many employers see the volumes of regulation and throw the proverbial baby out with the bathwater.  Criminal, civil, and credit screens are the best available means to discover applicants who might harm the company or its clients.  Failing in this discovery opens a Pandora’s Box of negligent hiring, negligent retention, and the myriad of problems that flow from hiring an employee predisposed to violence, recklessness, and theft.  Conducting these screens is a necessity in a modern workplace, and represents an investment in a culture of professionalism and security for your people.  With the widespread use of these tools and their simplicity and cost-effectiveness, criminal background checks are the “best available means” to avoid negligent hiring.  Hire without screening at your own peril!

2.     DIY (Doing it Yourself) – Doing the right thing in the wrong way is still a mistake.  With the best of intentions, employers might decide to join the trend of do-it-yourselfers out there.  The problem is that pre-employment screening is not sodding your yard or replacing your kitchen’s backsplash.  The federal government and each State regulate the use of criminal, civil, and, credit history.  The National Labor Relations Board is heavily involved in examining employer use of employee historical data, especially from social media sources. There are so hundreds of sources of information: national databases, local courthouses, internet websites, offender registries, credit bureaus, and social media, to name a few.

Without a guide in this information jungle, the employer-explorer can quickly find themselves on the wrong side of the wet rim of a boiling pot of regulatory stew.  Those internet sources are the perfect example.  Going to the web might find yield information to inform your hire, but in the process you’ve viewed protected class information under Title VII that has nothing to do with an informed hire and can never be “un-seen”.  Get a professional and reputable background screening firm to set up your screens and guide your policy creation.  Ask for references!  It’s worth the investment to do it right.

3.     Failing the “Job Relation and Business Necessity” Test – Even with a good decision to conduct applicant screening with a third-party firm, there is a final potential for disaster.  Not all screening companies are created equal.  Some are completely automated, with little support or analysis.  Others are just one private investigator who lacks an understanding of industry standards.  Either may sell you “cookie cutter” screening products that are not tailored to specific job duties.  If you do not document the job-related business necessity that justifies the screening, your background check could be ineffective and illicit.

Now you know how to maximize the power of the criminal background check for your applicant pool!  Use a comprehensive program of screening, employ a trusted third-party, and ensure that the screening tools and potential disqualifiers match the job duties and business necessity of the position in question.  For a better idea of what this kind of analysis could look like, check out the resource box below for a link to National Screening Bureau’s website!


By night, Dan Oblinger is a mild-mannered Sergeant for a large metropolitan police force.  He is a trained and experienced police officer, crime intelligence analyst, mental health specialist, hostage negotiator, and drug influence recognition investigator.  By day, he is the Director of Training for National Screening Bureau, a private company devoted to matching employers to their perfect hiring pool through background checks, drug testing, and I9 compliance products.  He lives on a ranch with his wife, three adopted children, and 13 chickens.  He speaks with passion and humor about his experiences and expertise to audiences across the nation.  Check him out at

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