Just as the busy season started this year, pool firms had to adjust to new federal rules on criminal background checks for job candidates.
Under the new guidance, issued by the Equal Employment Opportunity Commission in April, employers must tread carefully when it comes to prospective employees with past arrests or convictions.
Such information, easily available through criminal background checks, may contain inaccurate or incomplete facts. And, according to EEOC, the use of criminal background checks appears to frequently result in discrimination against Hispanics and African-Americans, who are more likely to be arrested compared with other Americans.
As a result, the federal agency now wants employers to give applicants a chance to explain any criminal marks on their records before removing them from consideration. As challenging as that sounds, it could have been worse for employers.
“Frankly, I think many HR professionals are just happy that the EEOC’s guidance did not go farther in limiting employers’ ability to use criminal background checks as a way of assessing candidates. While the guidance does outline parameters for use of criminal background checks, it also recognizes that [the law against employment discrimination] does not prohibit employers from considering criminal reports,” said Miriam L. Rosen, an employment lawyer at McDonald Hopkins in Bloomfield Hills, Mich. She added that the issue has been a “hot topic” with EEOC in recent years.
It’s also a hot topic with pool firms. Nearly three-quarters of employers conduct criminal background checks on applicants, according to a 2010 survey by the Society for Human Resource Management, and pool firms are no different.
“We consider [criminal background checks] essential as we are placing employees in our clients’ backyards,” said Gary Crayton, owner of Bay Area Pools and Spas in Tampa, Fla., which currently employs 74 people. He said his company will not hire a candidate who was convicted of a violent crime, burglary, or crime against children.
“In no way would we compromise on this issue,” Crayton said. “Other felons are asked about their crimes, and their stories are checked out. We believe in second chances where there is room for us to compromise. But at all times, client safety must come first.”
Crayton’s more nuanced approach seems to be what EEOC wants. “Use of criminal records should be ‘job related and consistent with business necessity,’” Rosen said. “That means employers should consider the nature of the crime and the time that has passed [in relation] to the nature of the job. ... Avoid policies or practices that include a blanket exclusion of anyone with a criminal record.”
But the process is undeniably more time-consuming, particularly for small businesses lacking HR departments. Many states have different rules on background checks and criminal records of job applicants, too, which may lead to more confusion. In Michigan, for example, hiring managers cannot legally ask a candidate about any arrests that didn’t result in a conviction, according to Rosen.
But there are alternatives to background checks. In Orlando, Jim DeBerry, managing partner of Aqua Pool Dealer, also uses an aptitude test for prospective hires, using the test in multiple ways to screen candidates.
The test also gives more information about an applicant’s behavior and values. “The questions don’t have to be about the actual offenses, but rather, cater to the ideas of how an individual would react in [various] situations,” noted DeBerry, whose firm employs 33 people. “You can ask a question about theft four different ways,” which may be helpful when evaluating an applicant with a problematic criminal record.
DeBerry pairs the aptitude test and interview with a drug screening, which he believes has eliminated many candidates who would’ve proven questionable. “I’ve found those who fail the aptitude test and show up the next day for the interview process are likely to never report to the testing facility [for drug screening],” he said. “I’m not saying in all cases that drug users and theft crimes go hand in hand, but [the process] has been a good general starting point” for screening job applicants.