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

Best Practices

Welcome to part three of our ongoing blog series covering the growing number of laws regulating pre-employment background screens. As your trusted partner, we’re here to help keep you as compliant as possible, and welcome the opportunity to provide information through our blog. Haven’t read our previous entries yet? We invite you to read part one here and part two here.

State and Local Ban-the-Box Legislation

Ban-the-Box laws limit when an employer may permissibly ask about an individual’s criminal history. Until recently, many employers asked questions of this nature on their employment application. The growing trend in the law is to prohibit this practice. Ban-the-Box law prohibits any covered employer (engaged in commerce or in any industry or activity affecting commerce, and employing 50 or more for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year) from asking about criminal history until after a first interview or conditional offer. However, each state and local law is nuanced as to what can be asked and when. These laws are not limited to asking a candidate to self-disclose his/her criminal history. Instead, they also require employers to wait until a later time to actually order the criminal background check. Some also require employers to post certain notices in their workplace or to include certain statements about the consideration of criminal history in job solicitations and advertisements.

Currently, New York City and Los Angeles have the nation’s most comprehensive Ban-the-Box laws.

Additional Best Practices to Consider During the Background Check Process

Criminal history policy is just one of many important areas to review and understand when conducting background checks for employment purposes. These are some additional best practices for your company to consider:

  • Review Job Descriptions: Companies should review the requirements of each position and determine whether a background check is necessary for that position. Also, review and consider narrowing the positions for which credit reports are run, and make sure the information requested from each candidate is relevant to the specific position for which the candidate applies. Review and comply with state and local laws that restrict or prohibit employer use of credit reports.
  • Review Policies and Procedures: Companies should review their background screening policies and procedures to develop processes ensuring all necessary notices and disclosures are being provided to candidates in compliance with Title VII, the FCRA, and any other applicable state or local laws.
  • Use Matrices Wisely: Companies should be cautious when applying their own bright-line policies (e.g. no-felon policies) without analyzing the factors set forth in EEOC guidance or as required by applicable state or local laws.
  • Consider EEOC Guidance: Companies should remember EEOC guidance and, when they are reviewing a candidate’s criminal history information, also consider (i) the nature and gravity of the offense; (ii) the time that has passed since the conviction and/or completion of the sentence; and (iii) the nature of the job held or sought; and apply the EEOC’s individualized assessment factors or any other factors required by applicable state or local laws. Companies should also determine how they will allow candidates to explain special circumstances surrounding their conviction criminal history information for purposes of an individualized assessment, including evidence of rehabilitation or other mitigating factors.
  • Consider the Timing of Background Checks: Companies should determine when to inquire about an individual’s criminal history and when to conduct a background check. The practice that will reduce a company’s risk the most is to make inquiries and conduct checks after making conditional offers of employment. Even then, companies should not automatically rescind an offer if they find something concerning in the background check, but should consider asking that person about the potentially disqualifying information. There could be an error in the report or some other legitimate explanation, such as identity theft.
  • Consider Whether to Ask Individuals to Self-Disclose Criminal History: Companies often ask whether the question is necessary given that they order a comprehensive criminal background check. However, where law permits, there may still be value in asking individuals whether they have ever been convicted of a crime. The practical reality is that some applicants lie, and courts have recognized the right of an employer to reject an applicant for dishonesty. Further, by not asking the question, a company that hires an individual who commits a violent or other egregious act may find it more difficult to defend against a negligent hiring claim because the victim will likely argue the company did not do enough to review the person’s history. On the other hand, by not asking the question, the risk of violating a Ban-the-Box law is greatly reduced (although some Ban-the-Box laws still apply to a company’s screening practices if they consider criminal history information with a background report or other public record searches).
  • FCRA Disclosures and Authorizations: Companies should regularly and carefully review their disclosure and authorization forms for compliance with the FCRA and state law. They should eliminate extraneous information from the disclosure form—including a release of liability from the candidate, at-will language, and any other “extraneous” information—and separate these forms into two documents.
  • Comply With Adverse Action Notice Requirements: Companies must also review their procedures, ensuring that pre-adverse action and post-adverse action letters are provided in accordance with the FCRA, including all the necessary federal, state, and local enclosures. The key is that companies must always provide candidates with a copy of their consumer report and a summary of rights under the FCRA, and give them a reasonable opportunity to dispute the accuracy of the report before adverse action is taken.

This blog is intended as information and not legal advice. Readers requiring legal or other advice regarding the matters discussed in this and the previous two blogs in this series should consult with experienced legal counsel.

A-Check Global is your trusted partner. If you have any background or drug screening related questions, our team of dedicated professionals are available to help, and can provide friendly, accurate guidance.

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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