Screening job applicants seems to get tougher every day. You all want to make sure you are hiring not only a qualified employee, but one who is honest, and safe to work with. That’s why many of you run a criminal background check before hiring. If you don’t do so, you risk liability for employee misconduct, such as theft or, even worse, violent acts against co-workers or the public. If you do run a background check, the do’s and don’ts –and the threat of a lawsuits seems to increase. I’m not going to get into all of those do’s and don’ts. There’s are just too many of them. We can learn from some recent patterns, though, so read on…
(image from dynamicdads.com)
I won’t keep you in suspense. Here are some of the more common patterns we are seeing:
Using online screening companies that aren’t compliant: It is so tempting when we have a question or a problem to enter a search term into Google and find a website or vendor that promises to solve our problem. Many online companies promise to provide accurate, quick and cheap background checks. There’s only one problem: many such companies do not comply with the Fair Credit Reporting Act (FCRA) requirements. (I posted about that here). Remember: if you use a third-party agency to run a criminal background check — or a credit check– on any of your applicants, they are required to comply with the FCRA. As the employer, if you use a vendor that is not FCRA-compliant, you too could be liable under the FCRA. Bottom line: choose your background screening companies carefully. Make sure they comply with the FCRA. Yes, I know that other companies may be cheaper, but, resist the temptation to look at background checks solely as a procurement issue.
Not providing proper disclosure: Some employers ( and many online background screening companies) don’t provide proper disclosure or get consent at all. Some do, but the way they do it still violates the FCRA. Here’s the point: Before you run the background check, you must give applicants a disclosure form, telling the applicant that: a) you are running a background check; b) what the background check will include, and; c) that you may use the results to make an employment decision.
Not getting proper consent beforehand: You must also get written consent. That consent form cannot be included in any other document. Similarly you cannot include something else, like release of liability language in a consent form, it is no longer a standalone form, and it violates the FCRA. While these may seem like tiny, technical violations, they can actually lead to class action lawsuits, and, in turn large payouts by employers to employees.
Rushing the Process: Suppose someone calls about their job application. You notice that the background check showed a “hit”, and you may have to reject the applicant for that reason. You tell the applicant, “There’s a problem with your background check. You’ll be getting a letter”. If you were the applicant, wouldn’t you think you weren’t getting the job? What’s supposed to happen? The applicant is supposed to get the letter (a pre-adverse action letter) and the chance to dispute/explain the “hit” on the report. What will probably happen here? The applicant thinks s/he’s been rejected, and effectively s/he may have been. Now you’re at risk of a FCRA lawsuit.
What can you do differently? You can let the applicant know s/he is getting a letter and explain that s/he has time (at least 5 business days) to explain/refute and the “hit”, and to provide documentation. (To be safe, let the 5 or more business days start from the date the applicant receives the letter.) For example, the applicant says “Someone stole my wallet with my identification, and that person drove drunk using my license”. You can ask the applicant for a copy of a police report or other similar documentation. Once the applicant has received the pre-adverse action notice and either cannot or does not explain or dispute the “hit”, then you must follow-up with an adverse action notice, advising that you did in fact base your decision on the “hit”. There is more to these requirements, which you can learn more about in my previous posts and particularly in my upcoming live webinar Criminal Background Checks in the Hiring Process.
Reliance on FBI records or fingerprints: Many employers mistakenly believe that a finger-print based background check, or one using a FBI database is better and more reliable. Some refer to it as the “gold standard”. Don’t be fooled. Basing a background check on fingerprints rather than names can be just as risky as name-based background checks. It can still contain incorrect information. FBI databases are made for law enforcement officials, not employers. Those records tend to be incomplete, often including arrest records without dispositions. In many instances, employers are not allowed to consider arrest records. If you go this route, you have information you really aren’t supposed to have — and basing employment decisions on that information. Here too you risk a lawsuit. This time it’s EEOC guidelines, and possibly state laws that may trip you up. (Click here for review of EEOC guidelines, and here for general info about state and local laws.)
OK, I think we’ve covered enough for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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