We could all use a good check list, right? How about a Background Check Check List? As you know, background checks should be performed in accordance with federal, state and local laws. It’s important to understand the rules that apply to your business.
A good background check can provide employers with crucial job-related information such as work history, education, criminal records and driving records to evaluate prospective employees’ qualifications.
Take note! Federal, state and local laws set limits on the use of this information when making employment decisions. Employers must ensure compliance with these laws. So now to the check list!
Written offer of employment
Many states and jurisdictions require employers to wait until a conditional job offer has been made before conducting background checks. Even without such restrictions, it is considered a “best practice” to wait until a job offer has been extended.
Disclosure and written authorization
The federal Fair Credit Reporting Act (FCRA) has specific rules for conducting background checks. These include requiring employers to provide written notification and obtain authorization from any individual subject to background checks performed by third parties (such as GroupOne Background Screening). Under the federal law, you must:
- Tell the applicant or employee that you might use information in their report for decisions related to their employment. This notice must be in writing and in a stand-alone format. The notice cannot be in an employment application.
- Get written permission from the applicant or employee. If you want the authorization to obtain reports throughout the individual’s employment, make sure you say so clearly and conspicuously.
Federal guidelines
Under federal guidelines, the use of criminal records must be job-related and based on business necessity. According to the U.S. Equal Employment Opportunity Commission, an arrest is not evidence of guilt and should not be the sole basis for denying employment. While employers can consider an applicant’s criminal history, they must assess its relevance to the job and the specific circumstances surrounding the arrest.
To establish that an exclusion based on a criminal conviction is job-related and consistent with business necessity, the employer must show a link between the specific criminal conduct and the risks inherent in the duties of a particular position. Employers must avoid broad exclusions based on a criminal conviction and typically must conduct individualized assessments.
State and local laws
Some states and jurisdictions further restrict the types of information that may be obtained and used in a background check. For example:
- Many states and jurisdictions have prohibited, restricted or advised against using arrest records to make employment decisions.
- Several states have enacted laws restricting employer access to applicants’ credit history.
- Nearly 20 states and several jurisdictions have enacted laws that include a provision prohibiting employers from asking about salary history.
Always check your state and local laws to ensure compliance.
Pre-adverse-action procedures
Under the FCRA, before taking adverse action based on a consumer report, an employer must provide the individual with:
- A copy of their consumer report (background check);
- A Preliminary Notice of Adverse Action; and
- A copy of “A Summary of Your Rights under the Fair Credit Reporting Act.”
Adverse action is defined as, but is not limited to, denying a job application, reassigning or terminating an employee, or denying a promotion.
By giving the candidate advance notice, they have an opportunity to review the report and explain any negative information.
Some state and local laws require employers to provide additional information to applicants and employees before taking adverse action, beyond what is required by the FCRA. Understand what state and local laws apply to your candidate before considering an adverse action.
Adverse-action procedures
If you decide to take adverse action, the FCRA requires you to provide a final notice to the individual that:
- Identifies the action;
- Lists the name, address and phone number of the consumer reporting agency (CRA) that supplied the report;
- Includes a statement the CRA did not make the decision to take adverse action and is unable to give specific reasons for it;
- Notifies the individual of their right to dispute the accuracy of any information the agency furnished and their right to an additional report from the CRA within 60 days of a request.
Retain records properly
Keep background check records secure at all times and limit the information only to those who “need to know.” Background checks should be confidential and kept separate from personnel files. They should be kept for at least one year after the records were made.
The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.