Background Checks, Part One: The Law, Best Practices, and Your Organization

Best Practices

When performing pre-employment background screens, there are a growing number of related laws that companies must comply with. So many, in fact, that we’ve decided to dedicate this topic to a three part blog series. We’re here to help keep you as compliant as possible.

Your First Focus—Implementing a Lawful Background Screening Policy

A background screening policy should be tailored to the unique needs of your company, and detail what background checks your company will run (e.g., criminal, credit, employment verification, education verification, driving records, etc.). Specific types of checks should be based on the relevant position, the relatedness of the check to the person’s ability to perform that job, and applicable legal limitations.

Obtaining criminal records is a great example to discuss further. When asking about or considering criminal records, the greatest pitfall to avoid is having a blanket policy automatically prohibiting your company from hiring an individual convicted of any offense at any time. In fact, some jurisdictions make such bright-line disqualification standards unlawful. Employers should consider the following factors when determining whether or not an exclusion is job-related:

  • The nature and gravity of the offense
  • The nature of the job
  • The time elapsed since the conviction or the completion of a sentence

In fact, there are many states and local jurisdictions that have addressed this very issue, and now require an employer to determine and exhibit whether or not the screening decision is a job related exclusion.

What about arrest-related inquiries? Employers should not ask about non-pending arrest records. If a candidate has an arrest pending, an employer may ask the candidate about the underlying conduct that led to the arrest and then assess accordingly. In some states, even asking about pending arrests is risky (e.g. California and Illinois). If a charge has been dismissed, however, it is risky to give any weight to that case and is unlawful to do so in some jurisdictions. Similarly, if a case has a deferred adjudication, or adjudication withheld, and the candidate has completed the terms of any condition placed by the court, companies should avoid taking any adverse action.

When to ask about criminal history: Your company should determine when to ask a candidate about his or her criminal background. Certain state and local “Ban the Box” laws prohibit including the question on an application, and the later in the hiring process your company asks the question, the less likely that the EEOC would be successful in pursuing a civil rights violation under Title VII. (Read our blog – a Fair Chance for Applicants-the Rise of Ban the Box Legislation to learn more).

Conduct an individualized assessment: Companies should allow candidates an “opportunity to be heard” to establish why their background should not bar their employment. The person(s) who conduct this assessment should be familiar with Title VII, EEOC guidance, FCRA, and any state or local employment laws.

Should you conduct a credit-related background check? Currently there is no EEOC guidance on how to properly conduct a credit-related background check. However, a company should consider conducting a similar analysis as that performed regarding criminal histories—analyzing the nature of the job, the nature of the negative information, and the time elapsed since the negative information arose, to determine whether a hiring prohibition is job related.

Mention the Fair Credit Reporting Act and how you comply: Your company policy should mention that you are familiar with the FCRA and outline how you comply.

Stay tuned for part two of this blog series to learn more about background screening best practices.

Reference

Devata, P. & Mora, J. (2018) Background Checks: A Primer for Staffing Firms on Complying With Federal, State, and Local Laws. [Issue Paper]. American Staffing Association

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