Every contractor uses slightly different criteria when deciding which individuals to hire; however, most are looking for people with good attitudes, some technical skills, a strong work ethic, no automobile accidents or tickets, and a clean background check.

This last point may become problematic, as the Equal Employment Opportunity Commission (EEOC) recently stated, “An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under the Civil Rights Act of 1964.” The EEOC added that employers should “eliminate policies or practices that exclude people from employment based on any criminal record.”

This leaves contractors in an uncomfortable position, according to Todd McCracken, president, National Small Business Association, who stated, “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet, the EEOC is threatening to launch lawsuits if they do not hire those same felons.”

Contractors Weigh In

Contractors have varying opinions about hiring individuals with checkered pasts, as evidenced by a recent conversation in The NEWS’ LinkedIn network group. In answering the question, “Do you do background checks on potential employees, and if so, would you hire someone with a criminal history?,” contractors responded with everything from, “If someone has a felony charge, no matter what, I would not hire them,” to “To think that because of a criminal background a person is rejected for life disgusts me. Everyone has a skeleton in their closet, and everyone needs an opportunity to change.”

Rich Callahan, service manager, Air Service Heating and Air Conditioning and All Service Plumbing, Springfield, Mo., seemed to represent the majority opinion of the LinkedIn discussion when he stated, “There is no way I would hire someone who could not pass a criminal background check. We advertise that our technicians have no criminal past and are drug free. Not only that, I would not want to put someone in one of our client’s homes without knowing their criminal past. I think it is our responsibility to check what types of employees we hire and have in the field.”

To that end, Callahan requires background checks on every single employee. Since the company advertises that employees do not have criminal histories, he believes that most know a background check will be required during the application process. “We use an outside agency to run city, county, state, and national background checks. We find misdemeanors here and there, but we mainly focus on felonies.”

The employment application form at Callahan’s company also asks applicants if they have ever been convicted of a felony, as well as whether they have ever been charged with driving a motor vehicle while under the influence of drugs or alcohol. Below those yes or no questions comes the statement that “any incorrect or misleading information will cause the rejection of the application or dismissal from job if you’ve been employed.”

Callahan noted that about one in 20 background checks turns up a problem in someone’s past, with most issues involving felony drug possession, assault, theft, DWIs, and aggravated assault. “If a background check turns up something, we’ll talk to the applicant to see if it’s true — to get their side of the story. But we do have a policy that states that we will not hire anybody who has a felony in their background.”

Lance Bent, CEO, Melroy Plumbing & Heating Inc., Baltimore, also does not hesitate to run background checks on potential employees. “I do most of the hiring, and when necessary, we run criminal background checks. However, all potential employees are given a physical screening that includes drug and alcohol testing. If I am not picky about whom I hire, my clients will not hire my company. It would be criminal to my investors, customers, and insurers to not do my due diligence.”

As such, the two traits that Bent looks for most often in new hires are honesty and integrity. “Our clients trust us with their riches, family, buildings, and businesses. Without this trust, all else could be considered a waste. We have unknowingly hired liars, thieves, drug addicts, alcoholics, all which had to be screened out during training by team leaders. Most should never have been hired in the first place, which the EEOC would probably consider to be discriminatory. However, had we discriminated against the common traits we know to indicate a bad applicant, we would have saved a lot of people a lot of time, trouble, and money.”

Legal Counsel

This latest guidance from EEOC concerning background checks stems from Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. But there is absolutely no reference made to criminal history, so how can EEOC threaten action based on Title VII?

The move is purely a creation of EEOC’s policy-making arm, said Brooke Duncan III, attorney, Adams and Reese LLP, New Orleans, and Air Conditioning Contractors of America’s (ACCA) Legal Tools resource. “These agencies are supposed to have the expertise to interpret and enforce the law, but over the last few years, they’ve become activist agencies. They are stretching the limits of the law.”

The logic that EEOC is using in regard to background checks is based on their previous guidance, which posits that African Americans and Hispanics are arrested and incarcerated in much larger numbers than is their representation in the population at large, said Duncan. “This means, according to EEOC, the criminal justice system is broken, and racially and ethnically discriminatory, and therefore, an employer who relies on criminal background checks is extending discrimination into the workplace out of the criminal justice system.”

That being said, Duncan still recommends the use of background checks by HVAC contractors whose employees are routinely in customers’ homes and workplaces. But he notes that contractors should not be lulled into a false sense of security, as most criminal background checks are spotty at best. “The public does not have access to the FBI’s National Crime Information Center (NCIC) database, and there is no other national database for all criminal convictions in all jurisdictions, much less for arrests. None. Zilch. Companies that say they can do a true national background check on people are exaggerating. There are a handful of states like Florida that have their criminal histories online, but in most other states, you have to go to every county and check the records manually to see if someone has been arrested or convicted.”

The federal court system maintains a national database where, for a fee, it is possible to find out if someone has been charged with a federal crime, but most potential applicants will likely not fall into that category. The best way to conduct a background check, said Duncan, is to go to the local law enforcement agency and check out the candidate. But if that candidate has committed a crime in a different county, it is likely that the local check will not include that information.

Another way contractors can protect themselves is to make sure their employment applications contain the right questions. Duncan stated that every application should ask, “Have you ever been arrested for any crime? All circumstances will be considered.”

“Arrests are useful information, and ‘any crime’ encompasses everything from DWI to small thefts, which might be relevant if you’re hiring someone for your accounting office. Of course, someone can lie on the application, but that person can be fired later if the lie is discovered.”

Companies can also craft guidelines concerning the hiring of those with criminal histories, although having hard-and-fast policies in place might be problematic, said Duncan. “If you say you’re never going to hire somebody with a criminal background, I think that’s an invitation to the EEOC to press a discrimination charge, especially if a contractor works primarily in commercial or industrial settings, where the risk is lower than for those working with residential customers. Instead, I think the savvy way to approach it is to say ‘all circumstances will be considered.’ That allows you to look at the nature of the offense and how long ago it occurred, compare this to the nature of the job, and give the applicant an opportunity to explain what happened.”

In addition to the EEOC’s new role in regulating background checks, employers should bear in mind that the Fair Credit Reporting Act comes into play as well, noted Duncan. That law says that if a company uses a third party to conduct background checks, job applicants and employees need to be advised of their rights to be made aware of, and to contest, adverse information used to decline or terminate employment.

In the end, employers are entering uncharted territory, as EEOC is not offering any specifics concerning what it considers to be discriminatory. Duncan advises contractors to do their due diligence when hiring by talking to an applicant’s former employers and performing as thorough a background check as possible. “You don’t want a registered sex offender going to service the equipment at the local elementary school. But at the same time, be aware that EEOC is out there, and while their guidance isn’t law, it is an indication of where they may start to take their enforcement activity. You need to pick your poison: Would you rather defend that lawsuit against the rapist that you sent out to Mrs. Jones’ house, or would you rather defend the discrimination claim? I’ll take the discrimination claim any day.”

Publication date: 6/3/2013

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