By Katie Kulp


As published to People 2.0’s blog:

Ninety-six percent of organizations conduct some type of background check as part of the hiring process, according to a recent survey. The most popular reason given for doing so? Public safety. In a culture where unexpected violence and betrayal grows, employee and client protection are of rising importance.

Ironically enough, performing background checks has also become one of the most highly regulated and increasingly litigious areas of the candidate onboarding process. Given the ever-changing legislative environment we live in, along with the number of restrictive and conflicting laws popping up, it has become incredibly difficult for employers to stay compliant.

Despite these layered legal complexities stemming mainly from the Fair Credit Reporting Act (FCRA), Equal Employment Opportunity Commission (EEOC), other state and federal laws, and the recent “Ban-The-Box”/“Fair Chance” trend, the wisest of companies are committed to finding the balance between hiring the right people and mitigating risk. Many accomplish this by utilizing a set of background screening standards for guidance, reviewed by legal counsel.

Seven Ways to Screen & Stay Lawful

The following tips are suggested as a starting point for employers to create a fair and compliant background screening process:

1. Identify legitimate reasons that support the background check request.

You need to assess all aspects of each individual position, including work location, environment, and the potential exposure to sensitive information. This will help you determine what type of screening is necessary and relevant.

2. Build criteria based on the legitimate reasons.

Develop a formal, written policy that can serve as a guide to the organization and specifically aid those individuals directly involved in the screening process. There should be no bright line hiring policies.

3. Be consistent.

Consistency is key to any business practice, but especially when related to background screening. The type of background check must be uniformly applied to all candidates for a given position. For example, a credit check may be suitable for a controller (assuming there is no law in that state barring it) and not for a laborer.

4.Time it correctly.

There may be state or local laws that require you to wait until a certain time before you perform, obtain permission, or ask an applicant anything related to completing a background check or related history. Be aware of these stipulations before you begin the process.

5. Obtain the correct forms.

The FCRA requires certain forms to be provided to and signed by an applicant before performing a background check. Refer to the Federal Trade Commission’s (FTC) recent guidance on what should be included in the forms. Check for any state or local laws that might require you to obtain additional forms or create alternate language to be inserted in a form.

6. Filter information and avoid discrimination.

Understand how to use the information gathered and know how to do so wisely. A candidate should not be discounted simply because a report revealed a criminal history record. To avoid discrimination charges, take into consideration the nature and gravity of the offense, the time elapsed since the offense, and the nature of the job sought. The EEOC offers guidance to be used as a resource; learn more by clicking here. There may also be a state or local ordinance that requires you to evaluate further and more specifically.

7. Discuss concerns with candidates.

In addition to the adverse action process required under the FCRA, conducting individualized assessments are suggested and often required, depending upon the jurisdiction of residence or employment. This practice provides a fair chance for consumers to dispute results and avoid discrimination. Plus, this could be used as an opportunity to create positive and productive discussion around the results.

Chane Solutions is a nationwide technology leader in employment background screening and drug testing services, and a People 2.0 Preferred Supplier.

Chane Solutions is a nationwide technology leader in employment background screening and drug testing services, and a People 2.0 Preferred Supplier. People 2.0 is a full-service Business Process Outsourcing provider, offering a comprehensive set of financial, administrative, and regulatory services to the companies across the entire Human Capital Services industry. The information presented in this articles is not legal advice from People 2.0, is not to be acted on as such, may not be current, and is subject to change without notice.

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