Background Checks and compliance - where to start?
As an employer, you want to ensure that you
have the right people in the right place to meet and fulfill your business
needs. From hiring, retention, promotion or reassignment, there are ways to
evaluate your candidate or employees. But before you do let’s recap on a few
important facts.
Before
You Get Background Information
In all cases, make sure that you're treating
everyone equally so you have no compliance issues with the Equal Employment Opportunity Commission (EEOC). It's illegal to run background checks on applicants and
employees when that decision is based on a person's race, national origin, sex,
religion, disability, genetic information (including family medical history),
or age (40 or older). For example, asking only people of a certain race about their
financial histories or criminal records is evidence of discrimination.
Except in rare circumstances, don't try to get
an applicant's or employee's genetic information, which includes family medical
history. Even if you have that information, don't use it to make an employment
decision. (For more information about this law, see the EEOC's publications
explaining the Genetic Information Nondiscrimination Act, or GINA.) Don't ask
any medical questions before a conditional job offer has been made. If the person
has already started the job, don't ask medical questions unless you have
objective evidence that he or she is unable to do the job or poses a safety
risk because of a medical condition.
Policies
and Procedures
If your business performs pre-employment screening
in-house or by a third-party be sure to have proper written policies and procedures.
This will allow you to have a good foundation to implement and educate your
resources to comply with the FCRA and EEOC regulations to avoid any potential
claim.
If you aren’t an HR person at heart,
documentation will not be your favorite thing. But hear me out, if you document
policies and procedures that are in compliance with federal, state and other
regulatory entities that your business may be affiliated to, the process will
be so much easier. The definition of policy itself is key, a course or principle of action adopted or proposed
by a government, party, business, or individual.2 Once you have it
in place, everyone involved in the evaluation process will have the same
standards, which reduces your risks of discriminatory claims or non-compliance.
But
what if it is outsourced?
Even if you receive the information from a legitimate
background check company, which do not include those instant online searches,
CRAs or Consumer Reporting Agencies are regulated by the FCRA and FTC to ensure
that there is no misuse of information. You need to have a procedure that
guides your hiring staff on how to handle the information from the moment it is
requested to the candidate or employee.
Make sure all forms used are in compliance
with the FCRA: how questions are worded, if it has to be on a stand-alone form,
if you need to provide additional forms based on your state regulations, and so
on. And let’s not forget that you need to have a defined job description! Once
you collect all the information, you need to ensure all evaluations are done
under the same standards. Lastly, it is best if you have just the
information you need, in these cases more is not always best. Limit your
background screening data to the requirements of the position. For example, if
the position is not related to handling of cash or access to financial
information, don’t request credit reports.
What
happens next?
Let’s talk Adverse Action. It is a very
delicate process to refuse someone for a job position, and it must be done as
stated by the FCRA and your company’s procedures. If a candidate/employee is
refused a position based in whole or in part by the information found on the
background check report you must comply with what is called Adverse Action.
This is a two-step process that the FCRA has deemed mandatory to ensure that
the candidate/employee has time to evaluate the information found on the
background check report is accurate.
Then there is the disposing of files that
contain personal information. Any personnel or employment records you make or
keep (including all application forms, regardless of whether the applicant was
hired, and other records related to hiring) must be preserved for one year
after the records were made or after a personnel action was taken, whichever
comes later. Other areas such as medical and education have additional record
preservation clause, make sure to review if that relates to your business.
These are a few basic compliance matters that
cannot be overlooked. If you have any questions regarding any of the topics
discussed here don’t hesitate to reach out to us!
