Brent Douglas on Background Checks [Podcast]


By Adam Turteltaub

It may be time to rethink background checks.  Brent Douglas (LinkedIn) partner at the law firm Hahn Loesser, explains that their use has been greatly reduced in many industries. This reflects the increase in the number of what are known as “ban the box” laws, which prohibit employers from asking job applicants to tick a box if they have a criminal history.

He also warns that in some jurisdiction screening applicants wholesale for criminal backgrounds may not be permissible. Only after a job offer has been conditionally made can a firm conduct a check.

That doesn’t mean background checks are always prohibited. In certain industries, such as healthcare, defense and transportation they are often obligated. Even screening for marijuana usage may be permissible, but be careful. California, starting in January 2024, will enforce a new testing methodology.

If your organization conducts background checks, it may be best to have a third party conduct it for you. This both leverages their expertise and may shift liability if the check is done improperly. He also cautions that even a casual internet search of a prospective employee may turn up a past criminal conviction and cross the line into what legally constitutes a background check.

For those concerned about the risks of hiring a criminal, he points out that roughly 95% of the population does not have a criminal background. Amongst those with a conviction, about 95% of those were for marijuana possession or a DUI. He asks; is it worth doing the background check given these odds?

Listen in to learn more about the risks of background checks.