The next Pandora’s Box of criminal background checks

Abstract

The use of criminal background checks (CBCs) – requests for information on previous convictions during the employment recruitment process – is growing worldwide. This article seeks to explain the proliferation in CBCs by examining whether novel legislation introducing mandatory requests for some jobs also leads to an increase in requests for CBCs for jobs outside the scope of the law. The present research makes use of survey data collected from individuals requesting criminal records certificates before and after the introduction of new CBC regulation in Spain – EU Directive 93/2011/EU – which established the obligation to request a criminal record certificate covering sexual crimes for jobs involving frequent contact with children. The analysis detects only a small and unsustained growth in non-mandatory checks following introduction of the new law. However, the results suggest that the danger of the new legislation lies in employers requesting certificates with a higher level of disclosure than is required for the positions on which checks were made mandatory by the new law. In addition, the growth in non-mandatory CBCs observed during this period seems to be related not to the new legislation but to the emergence of tech companies, raising alarm regarding the role of novel forms of policy mobility and the new collaborative economy in limiting the re-entry of individuals with criminal records to the labour market.

Collateral consequences of criminal records from the other side of the pond: How exceptional is American penal exceptionalism?

“…At the EU-wide level, Directive 2011/93/ EU on combating the sexual abuse and sexual exploitation of children and child pornography provided that convicted sex offenders 'may be temporarily or permanently prevented from exercising at least professional activities involving direct and regular contacts with children' and established the right of employers to be informed of criminal convictions for sexual crimes of all individuals applying for that kind of position (Article 10 dealing with 'Disqualification arising from convictions') (Jacobs and Blitsa, 2011). This regulation has been transposed into law in recent years in most of EU member states allowing, for the first time, private employers to request information on job applicants' prior convictions during the hiring process (Rovira, 2022). But the background checking culture spreads well beyond regulated professions and mandatory checks.…”

“…In this respect, as noted, it has been evidenced that US-style background checking companies are flourishing in countries such as Sweden and the United Kingdom through the exploitation of legal loopholes in the rules governing access to and use of criminal history information stored in national and supranational criminal history databases (Corda and Lageson, 2020). Furthermore, tech companies of the gig economy are starting to export US-based practices to Europe by requesting information on previous convictions in their recruitment process (Rovira, 2022).…”

Criminal records and public sector professional education: The role of criminal background checks in admissions to social work courses in England

“…Criminal record checks have become a ubiquitous feature of contemporary life in many Western countries, informing decisions made by employers, regulatory bodies, landlords, and education providers, which can have a significant impact on an individual's life (Denver et al, 2018;Rovira, 2020). While technological advancements have significantly increased the scope and accessibility of criminal record data, efforts at recording and codifying past transgressions pre-date the modern, data-driven, criminal justice system.…”

Privacy, promotionalism and the proliferation of state-performed criminal record screening in the Netherlands: How a restrictive legal framework can still result in a steep increase of criminal background checks

“…This is aimed at protecting the privacy of criminal record information, as well as promoting offender rehabilitation and re-entry into society (Herzog-Evans, 2011a;Jacobs, 2015). Mandatory occupational vetting and screening in the EU context is generally limited to certain professions involving contacts with vulnerable populations (Jacobs and Larrauri, 2016;Rovira, 2022). By and large, private employers do not pursue criminal record checks beyond the legal requirements because of the perceived confidential nature of criminal records (Larrauri, 2014).…”