Pepsi recently had a run-in with what looks like a good policy…until you realize it isn’t.  They previously had a policy, requiring background checks, to not hire anyone with an arrest pending prosecution even if they had not been convicted of anything.

In a society that claims to uphold “innocent until proven guilty”, it’s easy to see why this policy—intellectually, anyway—is hazardous ground.  When you include the likelihood that many of those kinds of arrests will not lead to prosecution and may have been due to misidentification, it’s easy to see why it may be poor.  But when you then realize that arrests of this type are significantly higher with certain groups, you realize it could lead to outright discrimination.

Black applicants were disproportionately excluded from the applicant pool when this background check policy was in place, even when the record had no impact on the job applied for.  Pepsi has taken the high road, adjusted its policy, promised to continue reevaluating how it applies background checks, and is offering jobs to all those applicants that wish to have one and are qualified.

The need for backgrounds checks isn’t in question here.  It is very valid to say past behavior often predicts future behavior.  It is also valid to wish to ensure physical, financial, and informational security from individuals who may have a tendency to harm others.  However, there is a right way and a wrong way to apply criminal background checks.

First, you must prove the business case for excluding applicants due to a criminal record.  For instance, it may not be important that someone has a 10-year old assault charge, not prosecuted, from a bar fight when they turned 21, for nearly any job I can think of.  On the other hand, you legitimately don’t want to hire someone to be a financial advisor or accountant if they recently completed their sentence on an embezzlement conviction.

Secondly, take into account the nature and gravity of the offense or offenses, the time that has passed since any conviction or completion of the sentence and the nature of the job held our sought. (http://www.eeoc.gov/policy/docs/convict1.html)  I think we can all agree that there are many who have been arrested, sometimes wrongly, sometimes for relatively minor offenses, and others for whom they have paid their dues, who are in need of a second chance and a level playing field for work.

The bottom line is, protect your business not just from potential criminal behavior, but also from possible litigation, settlements, and fines by properly applying background checks.  And you may discover some of your best new talent by doing so.