Employers recognize the “due diligence” benefits in conducting background checks on both current and prospective employees. Legal limitations on how such checks can be performed and how the discovered information can be utilized must also be understood.
I recently attended a webinar on this topic presented by Michelle A. Morgan, an attorney and partner with Shackelford, Melton & McKinley, LLP. Here are some top insights and best practices from Ms. Morgan’s presentation.
- The Consumer Financial Protection Bureau, a new federal agency, has recently replaced the Federal Trade Commission as the primary education and enforcement authority for federal rules relative to financial and background protections.
- The Equal Employment Opportunity Commission has been involved with cases related to background checks due to possible Title VII liability, including disparate treatment and/or disparate impact.
- Employers must provide a disclosure to an applicant that they may conduct a background check and must obtain written authorization from the applicant to do so.
- Consistency is imperative. If you initiate a background check for one new employee in a customer service role, be sure you initiate the same background check and apply the same standards for all new employees in that role.
- Eliminate policies that across-the-board bar employment for anyone with a criminal record. You may ask about convictions, pleas of guilty, and pleas of no contest; you may not ask about arrest records.
- Target your screenings to meet job-related and business-consistent criteria. Identify the essential job requirements, specific offenses that may demonstrate unfitness for that job, and reasonable duration of exclusion for that job based on all evidence.
- When an applicant fails a targeted screening, provide the applicant with an opportunity for individual assessment before determining whether the applicant is disqualified. Give notice that his/her criminal record may result in a no-hire and provide the individual with a written copy of the consumer report, as well as the Summary of Consumer Rights (FCRA).
- Give the applicant opportunity to respond concerning facts surrounding the conduct, the number of offenses for which convicted, age at the time of conviction, rehabilitation efforts, evidence of successful post-conviction employment in the same type of work, and similar considerations. If the applicant does not respond to this opportunity, you may make the employment decision without the requested information.
- After taking any adverse employment action based – in whole or in part – on information contained in the background check, provide the applicant with written notice enclosing a copy of the background check/consumer report and a copy of the “Summary of Consumer Rights” under the FCRA form (mentioning the CFPB), which includes contact information for the applicable consumer reporting agency.
Within federal and state legal guidelines, we offer background check services for our client companies. These services are available as part of the full placement process or as a stand-alone staffing service for your business. Contact Frank’s Employment today to learn more.
Note: These are our highlights gleaned from a recent webinar, not to be construed as direct legal advice from an attorney. If you have questions or concerns regarding background checks, we recommend that you consult your business counsel.
Republished with permission (including modest content and format edits). Originally published by Dawn on our employer blog in 2014.