Ban the Box? Criminal checks crucial to one, ‘vicious’ to another—a dilemma

By Beth Ewen

“That filter is a cruel, cruel taskmaster,” says Scott Griffiths, the CEO of 18/8 Fine Men’s Hair Salons.

He’s talking about technology tools that screen out job applicants—the background check, the credit report and perhaps the cruelest of all, the check-off box on applications asking about criminal convictions.

“It’s not nuanced so it’s obviously hugely unfair,” Griffiths says. “I have quite a few friends from high school and college that are now presidents and CEOs of companies, and I know what they were like.

“They did drugs, they were mischievous. There’s a whole list of things that if they had been caught” they now would bear a scarlet letter—a criminal conviction that keeps even those who have served their time from finding jobs.

The numbers are big and growing. Nearly 65 million Americans, or more than one in four adults, have a criminal record for either an arrest or conviction, according to the National Employment Law Project. Their rate of unemployment far outstrips the general public’s.

But as efforts grow to address the problem, employers face a dilemma. Consider Lenny Verkhoglaz, president and CEO of Executive Care, the franchisor of home healthcare services that places caregivers in people’s homes.

“I know the government is trying to stop discrimination,” he says. “On the other hand we have our responsibility to our clients who put trust in us to provide care, to make sure people going into their homes are not criminals, or batter them, or worse.

“We are in a bind right now,” he says, perfectly illustrating the other side of this coin.

Regulation rising

The check-off box is outlawed in seven states and more than 50 counties and cities that have passed “Ban the Box” regulations, requiring employers to wait until someone is selected for an interview before asking about criminal records.

The federal government, too, is seeking  targets, with the Equal Employment Opportunities Commission last summer filing two high-profile lawsuits, according to the law firm Bradley Arant Boult Cummings, based in Birmingham, Alabama.

In a suit against Dollar General, the Illinois-based retailer, the EEOC alleges the company uses a formula for excluding applications that includes the crime and how old it is but fails to include each applicant’s individual circumstances. As a result, applications from black candidates were rejected at a rate several percentage points higher than applications from non-blacks, the suit alleges.

In the second case, against BMW, the auto maker changed one of its major subcontractors, and about 650 employees with the old subcontractor applied for jobs with the new one. Although about 55 percent of the previous subcontractor’s employees were black, blacks were screened out under the BMW policy at a rate of 80 percent, the EEOC alleges.

Bradley Arant attorneys urge employers to be aware if new business activities “put your company in a jurisdiction with a ban-the-box law.” Beyond that basic advice, the picture is muddy. “The difficulty for employers of course is that there are no clear criteria to follow,” the law firm continues. “Proceed with care!”

Two approaches

Verkhoglaz plans to do so at Executive Care, but he’s not certain exactly how. In New Jersey, where most of his franchises operate, healthcare workers get fingerprinted through an FBI database in order to get a license.

“However, they could commit a crime the day after they get the license and I don’t think New Jersey goes back to re-verify, so that’s a loophole,” he says.

His firm conducts a background check every time a caregiver is hired. “Obviously it’s a cost to us, but we want to make sure that people who work with the most frail and vulnerable population are screened,” he says.

This year, because of the EEOC lawsuits, he’s been advised by his attorneys to remove the check-off box from applications, but he hasn’t done so yet and isn’t sure how to proceed on background checks. “It is such a difficult position I’m in. I have an employment attorney on retainer, and any move I make I have to run it by him,” he says.

One thing he knows for sure: “Nobody wants to go against the Department of Justice and EEOC,” he says.

Mark Portnoy runs Portnoy, Messinger, Pearl & Associates in Syosset, New York, the human resources advisory firm that Executive Care relies upon for advice. He agrees “ban the box” and related background check issues should be top-of-mind for employers.

“More and more, people who are being turned down for employment are looking for reasons to litigate,” Portnoy says, counting tough economic times as just one reason.

“I think desperation is a factor. I think people are smarter than they used to be.” He adds “a very aggressive” Department of Labor, which has “been advertising directly to the employees. That’s acquainted employees to understand that they have rights.”

He advises employers to consult with labor attorneys about their practices, and conduct training to be sure all are up-to-date.

The human touch

Griffiths, though, the CEO of 18/8 Fine Men’s Hair Salons, takes a more philosophical tack, suggesting employers get back to the practice of using human judgment rather than automated technology to evaluate employees.

He includes mandatory credit checks in his scorn, pointing out many job applicants and entrepreneurs alike saw their credit scores whacked after banks that had issued easy money suddenly cracked down. Credit lines were cut and credit scores plummeted.

“Now your credit scores go down. It goes to 650. The managers at the bank do not have the authority to give loans to anyone with scores below 720. So you see how vicious it is,” he says.

For job applicants, the system is equally harsh. “The employer does a background check including the credit check. They find out the FICO score is 620 because they didn’t pay their credit cards off on time. Now HR sees that person as being a deadbeat and a possible theft risk,” he says.

“That’s absolute crap, but that’s the way the filtration systems are working. They become monsters. They become absolute monsters.”

Griffiths isn’t naïve; he’s founded several businesses and his company was recently hit with a costly employment-related lawsuit. “It’s hard not to be a cynic,” he muses, saying regulations in California, his headquarters, are “insane” and he knows there are “a lot of just really, really horrible people that are gaming and cheating the system.”

But he’ll stick by the human touch nonetheless. “Isn’t it far better to make a mistake on that one person than to filter out 50 great people?” That’s a tough question, and each franchisor must find its own answer.