Greg Davis Quoted in Daily Labor Report

The article, "Pre-Employment Background Screenings Are Prevalent, Exhaustive, Likely Here to Stay," in the October 25, 2005 Daily Labor Report notes: "Like it or not, the era of aggressive pre-employment background screening has arrived, and likely will be a part of the hiring process for the foreseeable future. … Human resource managers say hiring today has less to do with attracting human assets and more to do with barring potential liabilities -- such as litigation and reputational risks -- from the front door. … The answer for a growing number of employers is easy: conduct an exhaustive background check by a professional screening company before extending a job offer. Through the verification and investigation services provided by such organizations, an employer can gain a wealth of information about an applicant's criminal past, credit history, driving skills, educational background and other aspects of their professional and personal lives. Employers say the money spent on such information is worthwhile because it sheds light on factors that could otherwise bring devastating physical, financial and reputational harm to the organization. The trend is driven in part by state and federal statutes. For instance, various laws bar convicted sexual offenders from working in childcare facilities and schools. Other individuals convicted of a violent crime are barred from working with elderly and disabled populations. On another front, federal security statutes pertaining to transportation of hazardous materials require that many truck drivers undergo pre-employment criminal checks.

"Employers focus on background screening based on the simple postulate that past behavior is the best predictor of future behavior," according to Gregory Davis, a labor and employment attorney in the Chicago office of Seyfarth Shaw LLP, who frequently counsels employers on screening issues. … Davis said employers also are fooling themselves if they ignore a wide range of legal limitations on their use of certain data in hiring situations. … "Employers need to be extremely cognizant of the parameters within which they can make permissible employment decisions based on the information they obtain," Davis said. "There is nothing wrong with making informed decisions. That said, employers can get themselves into trouble when they base employment decisions on impermissible criteria." … The Chicago regional attorney with the Equal Employment Opportunity Commission, said employers run the risk of a disparate impact lawsuit from his agency under Title VII of the Civil Rights Act when arrest records are used in the context of employment decisions. Davis agreed and advised employers to take a close look at their state civil rights statutes as well. Those laws vary widely with respect to the use of criminal information in the hiring context. In many cases, Davis said states require employers to go through a "job relatedness analysis" before rejecting an applicant based on information in a criminal background check. "In those states, if you don't undertake an analysis to determine whether the criminal record you are holding is actually related to the job functions the person is seeking to perform, you may have violated the law," he said.