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Having said all that, preemployment background investigations are worth the time and expense. There are, however, some practical issues that have to be dealt with. The first is that this cannot be done by the seat of your pants. Competent professionals, be they attorneys or HR professionals, should be involved in the design of the background investigation process for the simple fact that by federal and state law there are some questions you cannot ask. There are other issues as well. The items we are about to examine may highlight some of the practicalities of the preemployment background investigation process.
First of all, there may be resistance. In the period immediately after the terrorist attacks of September 11th, a number of companies, particularly ones in industries believed to be sensitive in a terrorism environment, decided on their own or were Congressionally mandated to initiate background checks of both new and existing employees. Several unions representing airline employees have filed suit to challenge these procedures, since they contend they go beyond the intent of Congress in mandating such checks. First, they contend that these
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checks include data older than the 10-year look-back window mandated by Congress and also pick up offenses other than the 28 serious offenses specified in the authority. The suits note that the FBI’s criminal data files may well reflect arrests, but at least half of the time disposition data is not included. Such data would indicate whether the arrest resulted in a conviction, acquittal, dismissal of charges, or other diversion from the judicial system. (It is noted the FBI files contain only information provided to it by other criminal agencies and courts, be they federal, state, or local.)
Other airline employee concerns involved companies, such as Southwest Airlines, that are looking into employee offenses, big or small, that they never before knew about. A representative for Southwest confirmed that that company was conducting fact-finding interviews and believed it had a responsibility to do so when such information surfaced. Other employees in the industry have raised other issues about preserving the ability of an employee to demonstrate their security worthiness following a revelation that they had a heretofore-unknown brush with the law many years ago.13
In response to such issues and suits, Northwest Airlines announced one month later that it would no longer use FBI criminal background data to dismiss workers for previously unknown offenses. Rather, the company indicated it would use such data only to bar these workers from sensitive areas of airport facilities. Employee groups had cited a provision of the enabling statute that said the FBI data could be used only for “security access” purposes.14 Prior to this decision Northwest, like many federal agencies in the past, was evidently taking the position that since a security clearance and freedom of movement at airport facilities was a valid job requirement, not being able to maintain a security clearance because of a prior criminal conviction meant being unable to perform the job, and was therefore grounds for dismissal.
The post-9/11 demand for security checks is also causing headaches for law enforcement agencies and delays for employers and applicants awaiting results. Some agencies report increases of as much as 100 percent in background check volume in systems that were already under resource strain. Terrorism concerns have only exacerbated the tendency over the last two decades to require licensing and background checks in various occupations, ranging from hairdressers and day care workers to truck drivers. The Pennsylvania State Police report that when they initiated background checks in 1983, they got fewer than 24,000. In 2001, they received 732,000, an increase of 3,050 percent in just 19 years.15
Testing of various types is also often thought of as part of the selection process and can be useful, if utilized properly. When the courts find that tests were improperly constructed or utilized, the results can be unpleasant. Target Stores in 1993 agreed to pay more than $1 million to a class of approximately 2,500 security officer applicants when a California court held that the test used violated the California Constitution’s right to privacy and provisions of California statutes prohibiting religious and sexual orientation discrimination. One employment
law attorney, Condon McGlothen, provides the following suggestions when thinking about the use of testing tools:16
• Counsel should inventory and review what tests are contemplated or are used.
• Employers should assess whether tests are necessary to achieve a business purpose.
• Experts recommend using tests as a factor, but only a factor, in making employment decisions.
• Tests should be customized to measure the job in question or the issue at hand, and not be an off-the-shelf item.