I hate HR Conferences

Well, I don’t really hate them. I’m kind of an HR conference junkie. (I’m speaking three times at HRSouthwest in October.)

What makes me crazy is when a speaker makes a presentation that over-generalizes the information around what employers can’t do in a certain situation.

That leads to a bunch of mythology in HR. 

“It is illegal to ask for the SSN on the application.” (No, it’s not but that doesn’t mean it’s a good idea.)

“Background checks cannot report criminal convictions older than seven years.” (Not in the majority of the country. I tackled this one last fall.)

“Employers cannot ask about or consider deferred adjudication records when making hiring decisions.”

That last one came from a client who attended an employment law conference here in Texas recently.

A presenter apparently said that employers can only consider criminal convictions and not dismissals, which would include cases dismissed after the deferred adjudication probation was completed.

So my client was steamed – at me!

Had he been illegally asking applicants about deferred adjudications? (He uses Imperative’s criminal history inquiry document.)

And why the h-e-double-hockey-sticks was Imperative including deferred adjudication records on his reports?!

So I guess I just hate HR conferences when my clients attend them.

I always want to know why.

When I was an HR manager, I never took “you can’t do that” as an answer. (I still don’t.)

And usually, when I dig into an issue, the situation is more nuanced than a black-and-white “yes, you can” or “no, you can’t”.

Seven states* limit employers to the consideration of criminal convictions only.

Beyond those seven states, federal law, EEOC guidance (which even allows consideration of arrest records), and the other 43 states’ laws allow review of deferred adjudication cases.

So what is deferred adjudication?

It is basically a way to expedite a case through the overburdened criminal court system, slap the defendant on the wrist, and allow him to move on without a criminal conviction.

When a defendant enters into a deferred adjudication agreement, he pleads guilty or no contest (i.e., does not argue his innocence) to the offense and agrees to serve some sort of probation.

Upon successful completion of probation, the case may be dismissed by the court. It is a dismissal – not a conviction.

But because of the defendant’s plea and agreement to serve probation, it seems reasonable to believe that he engaged in the underlying conduct.

My advice to our clients reviewing applicants’ criminal history matches that of the EEOC:

Make hiring decisions based on applicants’ behavior (not just the outcome of the case) and what that behavior suggests about their fitness for the positions for which they’ve applied.

After I explained all this to my client, he felt more confident about his process and past hiring decisions.
I suggested that whenever he sees a deferred adjudication record on a background check, he consider two factors:

  1. Did the applicant disclose the deferred adjudication when asked? If he lied, then follow your policy for falsification of the application. Most of our clients would not hire someone who lied to them – regardless of the nature of the offense.
  2. Is the underlying conduct relevant to the job? What were the circumstances surrounding the offense? (Don’t take his word for it, though. Call us to retrieve case documents for verification.) Does his subsequent work record and the rest of his background shed any light on whether he is a continued risk?

These kinds of questions are the reasons we offer free monthly webinars (register for the next one today). Some of our clients attend them religiously, but some just wait until they are in a panic and call me.

Either way, I’m here for them.

I’m here for you, too. What questions do you have about your background screening process?
* California, Hawaii, Michigan (with regard to misdemeanors only), New York, Rhode Island, Washington, Wisconsin.