Criminal Background Checks and Employment Practices in Healthcare
The healthcare services industry (including nursing homes and assisted living facilities) in 2010 accounted for approximately $1.75 trillion in revenues and employed more than 14 million people, or nine percent of the U.S. workforce. In addition, the U.S. Bureau of Labor Statistics estimated that growth in this industry would yield 3.2 million new jobs between 2008 and 2018 (in fact, in 2012, healthcare jobs accounted for one out of every six of the jobs created). Furthermore, according to a recent report published by Georgetown University’s Center on Education and Workforce, it’s estimated that by 2020 there will be 5.6 million new healthcare jobs.
That’s a lot of people employed by an industry that will only continue to expand, especially with the aging population in this country and the need for increased healthcare services. Along with filling positions come the challenges of implementing sound employment practices by organizations and facilities throughout the healthcare continuum. Issues such as discrimination, sexual harassment, wrongful firing and other alleged workplace misconduct claims could cost a company significantly. The Equal Employment Opportunity Commission (EEOC) has over the last few years proactively investigated employment practices claims and is committed to continue to do so.
One hot topic is the use of criminal background checks in the hiring process, which remains on the EEOC’s radar since it issued new legislative guidance in 2012. According to the EEOC, its guidance on an employer’s use of arrest and conviction records is not intended to bar criminal background checks but rather to prevent discrimination in how such information is used. The EEOC cites that “using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII).” The law is as follows:
- Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).
- Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:
- They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND
- They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.
Moreover, several states have passed laws limiting employers’ use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records.
Criminal Background Checks in Healthcare
Since the new EEOC legislative guidance and state laws restricting criminal checks were introduced in 2012, many in the healthcare industry, according to a benchmark survey conducted by HireRight, have changed their criminal check policies due to the EEOC legislative guidance or are planning to do so (61% of respondents). But many (39%) are still doing nothing. These organizations may feel they are compliant whether they are or not. Another reason could be that although screening practices are regulated by federal and state government, employers may think they are already going beyond what’s required and are therefore believe they’re already compliant. Inaction may also be caused by conflicting regulations—the EEOC guidance states that organizations cannot automatically deny employment to an applicant who had a criminal history, whereas a state law may require such action.
Employment screening and hiring policies by all healthcare facilities should be evaluated to ensure compliance. What’s more, all healthcare facilities should have a sound Employment Practices Liability Insurance (EPLI) program in place. EPLI coverage provides the defense and indemnification coverage needed in the event of alleged discriminatory practices, sexual harassment, retaliation, and other claims.
At Caitlin-Morgan, we can help you place the EPLI coverage your clients need. We can provide insurance coverage for a wide spectrum of employment-related claims in addition to assisting with loss prevention programs to help minimize the risk of those claims. Please give us a call at 877.226.1027.