Some ... have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.The Times notes a 2010 survey [PPT] by the Society for Human Resources Management, with around 90% of companies surveyed - mostly large enterprises - indicating that they conducted criminal background checks on some or all job candidates. Many are reported to screen out anyone who has a hint of criminal activity (including people who were arrested but not convicted), disregarding government guidelines that demand employers take into account the severity of an offense, the length of time that has passed and its relevance to the job in question.
Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.
The Times comments that -
There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964. ...Meanwhile the European Commission has release a 44 page Evaluation report on the Data Retention Directive (Directive 2006/24/EC) [PDF].
At least three lawsuits brought under the Fair Credit Reporting Act, which mandates that employers notify applicants rejected because of a consumer reporting agency’s criminal background check, have been settled for the plaintiffs.
Defendants in lawsuits over criminal background checks have included transportation companies, a charter school, screening companies, a global consulting firm and the Census Bureau.
In New York, where state law regarding background checks is stricter than federal policies, the state attorney general’s office has settled with Radio Shack, ChoicePoint and other companies after investigating them for violations.
The report notes inconsistencies in national interpretation (or merely in implementing) the 2005 EU Data Retention Directive. More problematically, it comments that eight of the 19 member states that have implemented the Directive have disrespected its focus of providing data to combat "serious crime". The UK has not defined "serious crime". Law in France, Italy, Belgium, Denmark, Poland, Latvia, Slovakia and Slovenia permits use of retained data in investigation of all criminal offences.
One of the more perplexing memes in Australian IT literature is that European privacy law fundamentally hobbles effective law enforcement and that there are few requests for access under the Directive. The report is a useful reminder that is not so.
The Directive harmonises European law, requiring Member States to oblige providers of publicly available electronic communications services or of public communications networks to retain telecommunication traffic and location data for between six months and two years for the purpose of the investigation, detection and prosecution of serious crime.
An unused regime? The report notes that there were around 2.9 million access requests from 2008 to 2009 (equivalent to two requests for every European police officer a year or 11 requests for every 100 recorded crimes).
The Commission has floated the idea of a data retention hierarchy to ensure data is only accessed under the Directive in relation to serious criminal offences.
