Burden of Proof

Article excerpt

Employers will soon be asked to provide empirical evidence for screening and hiring practices based on assumptions about workplace criminality - but they'll be hard-pressed to find it. Stories by Fay Hansen

EMPLOYMENTGROUP's December job postings included a "trial hire" fora small assembly job, paying $9 per hour, the equivalent of $17,550 a year. The Michigan staffing firm listed requirements For the position: a high school education or general equivalency diploma, small assembly experience and "no convictions."

Virtually all of EmploymentGroup's client companies have a blanket "no felons" policy.

"It's about keeping the workplace safe, and about those lawsuits we all read about," CEO Mark Lancaster says. In Michigan, a state that spends more on corrections than on higher education, smoking pot in a park or bouncing a $500 check can produce a felony conviction.

Like most employers, EmploymentGroup doesn't have any empirical evidence that the "no convictions" policy helps keep the workplace safe. And screening vendors, who routinely claim that criminal checks reduce workplace violence, theft and fraud, don't have any meaningful empirical evidence either. In addition, the actual probability of a negligent-hiring lawsuit - a perceived risk that often drives criminal screening practices - remains undocumented.

Employers spend billions on criminal checks and often base hiring decisions on the results without evidence of the return on the investment or the efficacy of the decisions. The absence of empirical evidence will soon become more than a question of effective screening and hiring practices.

Within the next 12 to 18 months, employers can expect to see the U.S. Equal Employment Opportunity Commission issue new guidelines that require empirical evidence for the "business necessity" defense in racial discrimination cases that arise from screening and hiring practices, according to Rod Fliegel, a partner at Littler Mendelson in San Francisco. The new guidelines are likely to upend hiring policies based on untested assumptions about criminality and workplace behaviors.

Employers stand to benefit from the new guidelines, which may bring greater clarity to what is now a legal quagmire. In addition to the new guidelines, in September 2009 the EEOC filed the first lawsuit in what experts believe will be a new series of court actions on screening and hiring practices that may help define the empirical evidence federal courts will require.

Perhaps more important, the legal scuffle over empirical evidence will continue to kick up questions about the role of criminal screening in hiring and the extent to which employers find false comfort in a relatively cheap and easy - but unproven - risk management tool while neglecting more effective measures to reduce workplace violence, theft, fraud and employment-related lawsuits. While the screening industry continues to play to employer concerns about criminality and promote criminal checks as an effective countermeasure, broader forces are challenging those assumptions.


Sensationalized headlines about workplace homicides and inflated vendor claims paint a dramatic picture of workforce criminality and criminal screening as an effective riskreduction practice. But when the EEOC demands that employers produce empirical evidence to support hiring practices based on these claims, the screening industry will not be in a position to assist.

"Background screening can create a safer workplace," says Theresa Preg, director of marketing development for LexisNexis Screening Solutions, also known as ChoicePoint, which runs 1 2 million employment-related screens a year. But the company has no empirical evidence to back up the statement.

Vendors frequently cite statistics on workplace violence but fail to note that the vast majority of incidents are not perpetrated by employees but by criminals unconnected to the workplace, clients or customers, or outsiders who have a personal relationship with an employee. …