By Brian Huseman
September 9, 2016
One of the toughest challenges for managers today is securing resources for their open positions while navigating the legal web associated with hiring. Your method of recruiting, interviewing, evaluating and hiring is not something to set and forget. A quick audit of your hiring process may uncover issues associated with applications, release forms, interview questions, screening and hiring/rejecting.
The following considerations should be taken when auditing your background check / hiring process:
Provide accurate job descriptions and methods of application.
Sorting through applications from candidates that lack the skills, experience or education required for a position is a terrible waste of time for reviewer and the applicant. Taking the time to review your job descriptions and updating them as needed will save time and disappointment down the road. Think about the skills and experience of your top producers and build your job descriptions based upon those.
Secure the applicant’s consent to run the background check.
Section 604(b)(2) of the Fair Credit Reporting Act (FCRA) specifically provides that “…a person may not procure a consumer report…for employment purposes with respect to any consumer, unless—
- a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured…in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
- the consumer has authorized in writing…the procurement of the report by that person.”
Basically, you must have your applicant fill out a release to run a background check. In addition, the form should be provided to the applicant as a document separate from the application.
Background check reports should be based upon the position being filled.
Begin with residence based criminal history. This provides research in the areas where your applicant has lived. Consider a National Criminal file or Statewide report to expand your research to find records outside of the areas they have lived. If you are looking to hire a person for a cash handling position, an employment credit report may be a good idea. Management hires may require additional checks such as federal courts and education verification. The important thing is to be sure that it’s consistently applied and should have a direct relation to the risk associated with the position.
Submit accurate applicant information (Name, DOB & SSN) for research and verification.
The accuracy of the information provided to your background check company is very important. Something as simple as a transposed number in a date of birth or a misspelled last name can make all the difference. Typically, criminal records are kept with only name and date of birth on file. Courts are obligated to file records under the subject’s legal name. You should consider asking for the applicant’s name as it appears on their driver’s license or government issued ID. Across the country, social security numbers have been removed to protect people from identity theft. Therefore, a simple typo can prevent you from finding criminal history.
Allow time for the research to complete.
Criminal background checks and employment verifications can take a couple of days. It’s important to hold off on that hiring decision until you have the information you need to make a smart choice. It’s easy to look at an applicant and think they’re perfect for the job, but you never know what you may find in the background check results. Making a hasty decision can cause more legal problems for you down the line.
Review the details of the background research and determine if the applicant’s qualifications meet your hiring criteria.
Per the Equal Employment Opportunity Commission (EEOC), it’s important to consider the type of job the applicant is applying for. In 2012, the EEOC issued a new guidance document on criminal conviction exclusion policies. This guidance endorsed removing conviction questions from job applications as a “best practice” and made it clear that federal civil rights laws regulate employment decisions based on arrests and convictions under Title VII of the Civil Rights Act of 1964, as amended.
What this means for you is that if a criminal record is uncovered, it’s best to only consider convictions with a direct relationship to job duties and responsibilities and also consider the length of time since the offense.
If you are considering not hiring, provide a copy of the report and their rights under the FCRA prior to making your decision final.
According to the FCRA, If a criminal background report contains negative information which “in whole or in part” may cause you to take any adverse action, including rejecting that candidate for employment / denying a promotion / terminating a current employee, you must provide a copy of the report to the applicant and the CFPB’s summary of rights prior to making your decision final.
It’s also important to give the applicant sufficient time to obtain /dispute/ clarify the background check report before making a final decision. It’s suggested that you wait 4-5 business days after mailing a copy of the report and the summary of rights, before you contact the applicant with your final decision.
If you decide to hire, make the offer of employment.
There are certain background check searches that cannot be started until an offer of employment has been extended. At this point in the process, once the employee has been hired, a Workers Compensation report can be initiated. Or, if you are in the governments E-Verify program, an E-Verify check should be run within 3 days of hire.
SELECTiON.COM® provides the comprehensive and customizable screening solutions needed to navigate the legal aspects of background screening. We stay up-to-date with all EEOC and FCRA regulations and provide you with all of the forms you need on our proprietary system, Fastrax Select®. Our system allows employers to stay compliant and provides clients with the ability to follow the background check process from start to finish. Our Applicant Entry system will obtain accurate information straight from the applicant, as well as an electronic release form. The one-click FCRA notification system makes the FCRA compliance a breeze.
Our 5-star customer service is available via phone, email and chat to help clients with any questions they may have along the way. SELECTiON.COM® has been in the background check industry since 1991 and we understand the many problems employers face in trying to hire and maintain a good workforce.
SELECTiON.COM® is integrated with HR management software, including the top applicant tracking systems. We also offer our proprietary applicant entry process at no additional cost. We will support you through the entire recruitment process from candidate to employee, including a final check through E-Verify after hiring.
Contact us today to see how SELECTiON.COM® can take your employment background check process to the next level.
800-325-3609 ex. 3023
NOTE: The contents of this article are not legal advice for your particular situation. You should neither act nor rely upon anything stated in this article without first consulting your own legal counsel.
Brian has been in the background screening industry for over 16 years, helping thousands of companies hire qualified applicants through background checks.