Criminal Records and Potential Disabilities - Ask HR Wench

I've seen this before. Arrest and/or conviction records collide with potential disabilities under the Americans with Disabilities Act (ADA) and the HR department has an "Oh, Crap" Moment. A reader writes,

I am a recovering alcoholic. In a short period of time between 2003 and 2004 I racked up:
  • Drunk in Public (after a party, we all got popped in a hotel parking lot for being loud and unruly).
  • Petty Theft (I walked out with a $2.99 bottle of wine from a grocery store, waving it in front of the security camera).
  • DUI (it was just a matter of time, thank God I didn't kill anyone).

(Note that I included the circumstances involved in each misdeed).

I am always forthcoming with HR at the beginning of a job, when filling out the appropriate forms, if these questions are asked. My query is:

Shouldn't the above information be kept within HR files, only? At my last job,the girl in HR had to "clear it" with my would-be manager before they would hire me. She "ok'd" it, but I felt uncomfortable with the fact that my boss knew this very personal information about my past. This has never happened before so I am curious.

Congratulations on your recovery.

My opinion on this may be different than others'. In the comments section of this post, you may very well find other HR pros disagreeing with me. We like a healthy debate around here.

I once worked for a company whose head of HR held the belief that since the manager made final hiring decisions for their team, a criminal or credit check that teetered on the edge of passing or failing should be disclosed to the hiring manager. The more informed they were, the head of HR believed,the better decision they could make.

I disagreed wholeheartedly, and not just because of the fallout this policy sometimes caused.

While I believe hiring managers should be trained in relevant legal and competency based hiring practices, I also believe a little bit of knowledge can be very dangerous.

Human
resources should be processing background checks, determining if
someone passes or fails using as objective a scale as possible, and
give the yes or no to hiring managers as to an applicant's
employability at their company.

Anyone outside of HR, aside from corporate counsel (hopefully labor law attorneys, in this case) shouldn't hear about or see the contents of a criminal or credit background check. A reference, employment verification and/or education background check? Fine. But not credit or criminal. Even if some of the information is publicly available, no one should hear about it from HR.

Why?

1. HR professionals that manage recruiting are (hopefully) subject matter experts when it comes to employment law. They are also (again, hopefully) used to dealing with

  • Employment law collisions (in this case, the FCRA and ADA),
  • Extremely sensitive information,
  • Keeping confidential things confidential, and
  • Not holding crap against people that they are not supposed to.

2. Any type of background check processed by a third party is subject to the Fair Credit Reporting Act (FCRA). Credit and criminal checks are almost always performed by a third party. At times, other types of checks are done through these vendors as well.

The FCRA is very strict and I don't suggest people mess around with it.

I say keep that crap in HR and have a pass/fail system. Candidates whose report teeters on the brink should be dealt with as the FCRA dictates (and you so pro-actively explained above). The candidate should be contacted and allowed to dispute and/or explain circumstances to HR.

3. In addition, as in your situation, recovering alcoholics and/or drug addicts may be considered disabled persons under the ADA. This means discriminating against them in employment situations due to their history of substance abuse is against the law. If a hiring manager doesn't know a candidate is a recovering addict/alcoholic, they can't discriminate against them for it.

People who say they don't discriminate against any legally protected category because they "don't see color" et, al are wrong.
Everyone discriminates, judges & acts ignorantly at some point.
It's an insidious concept and no one is immune. People may attempt to be as open minded as possible & work to overcome stereotypes in their thinking, but no one is perfect. This includes HR and that is why having a policy & pass/fail thresholds is important.

I don't mean to imply that hiring managers can't be trusted or that those who work in HR are somehow "better people" (they're not). I simply speak from my seven years experience in human resources handling recruiting, employee relations and performance management.

Readers - I'm sure some of you have had other experiences and/or disagree. Let's hear it!

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