Background Checks Online: FCRA & EEOC Employment Screening
From ban-the-box laws to FCRA and EEOC guidelines, employers are having a difficult time.
Nowadays, when conducting employment background checks on potential new hires, employers are under constant pressure trying to create a harmonious balance between job discrimination and negligent hiring. They are encountering that how background checks were processed the previous year, is no longer applicable due to new FCRA, EEOC mandates, and local legislature.
Obviously, selecting the wrong employment candidate causes loss of valuable time while creating an unsafe workplace environment for your co-workers and clients. Add to the equation a negligent hiring claim, and you are now facing a costly financial disruption that can put quite a dent in your bottom line. Finally, public scrutiny of your company’s reputation due to misinterpretation of a background report.
A negligent hiring claim implies an assertion by an injured party against an employer based on the hypothesis that the company had prior knowledge or failed to investigate (Due Diligence) the worker’s background history, thereby exposing harm to others.
What is Ban the Box?
Ban-the-Box was originally conceived and lobbied by All of Us or None. Prior to the “Ban The Box” movement, employers would initially filter job applicants by asking “Have you ever been convicted of a crime?” in their job application. At the same time, criminal background checks were processed at the “front-end” prior to the job interview. Thus, it saved Human Resources Manager’s time and resources invested in someone who may not be a good fit in their workplace, due to their past criminal tendencies.
In a nutshell, employers must consider a job applicant’s experience and skills beforehand, without the stigma of a prior criminal conviction record.
So what is the objective of “Ban-the-Box”?
To create a fair opportunity for those convicted of a crime to demonstrate their job skills rather than being disqualified at the initial stage of the hiring process. By implementing this practice, the background check process is delayed until after the interview or job offer.
The assumption of the Ban-the-Box movement is that those that were convicted of a crime and paid their dues to society — are having a much harder time finding a job than those with a clean criminal past, even when they can demonstrate superior job skills required for the job position. Their own research shows that those ex-offenders are most likely to commit another crime when frustrated with their inability to find gainful employment.
Which states and municipalities currently enforce “Ban the Box”?
At this present time, 31 states and about 150 cities and counties implement “ban the box”.
Who must follow this law?
Private employers whereby “ban the box” is in effect. Exemptions are some public sectors (government clearance) and “sensitive” positions where children or the elderly are involved, to name a few.
What if the background check finds a criminal record on an applicant?
According to the Equal Employment Opportunity Commission (EEOC) Fair Practice Guidelines, Human resources managers are supposed to assess them on a case-by-case basis. This is referred to as “individualized assessment“. EEOC advises that businesses take into account the nature and severity of the crime, how long ago it happened, whether they were convicted or not prosecuted, and how it will affect in relation to the type of job position.
Essentially, an individualized assessment procedure grants a job prospect, the opportunity to furnish proof that their past criminal history is not relevant to their capability in performing at their job. While at the same time, it enables an employer to decide if the criminal record is particularly relevant to the job position.
Fair Credit Report Act (FCRA) Basics
By and large, prior to a hiring manager obtaining a background check (consumer report) on a potential employment candidate from a background check company (consumer reporting agency a/k/a CRA), the recruiter should always provide an evident and obvious written disclosure to the applicant on a separate sheet of paper or electronic form separate from any other employment-related form. This stand-alone document must strictly consist of their signed consent that a background check will be performed on their behalf for the sole purpose of employment.
Background check authorization consent must be conspicuous to an applicant as to authorization they are granting you. It cannot be an addendum to an employment application, but rather an entire separate distinguishable form.
If derogatory records are found
Prior to an employer revoking a conditional job offer or terminating an employee (adverse action), the employer must furnish the applicant or current employee a “pre-adverse action” notice. Said notice will include a copy of the background check report along with the Consumer Financial Protection Bureau’s Summary of Rights. Doing so gives the individual a fair chance to dispute any incorrect information found and at the same time enables him/her an opportunity to further discuss those results with the employer before “adverse action” is initiated.
While is not advisable to make an employment declination decision based solely on the results of a nationwide database search as they may not contain updated records, some employers choose to send out a 613a letter to applicant.
A 613 Letter serves as a notification that derogatory information was found in a criminal database background check that could influence their ability to be hired. Normally it is used to save time and money in verifying a record at the county court. If applicant wants to dispute the criminal database information, then you must verify at original county court source.
As an abundance of caution and given the fact that the FCRA has been somewhat ambiguous due to the excessive amount of FCRA litigation these days — we highly recommend going by the “strict” method of county court verification.
Moving forward with adverse action
As soon as the HR supervisor is ready to initiate the adverse action process, it must give the individual an “adverse action” (job declination) notice, that comprises of FCRA legalities advising applicant of their rights. Such letter should include a copy of the background investigation and time limits for applicant to dispute any inaccuracies or other mitigating circumstances. After waiting the requisite time period, notify the applicant of any final adverse action, of any existing procedure the applicant has to challenge the decision or request reconsideration, and of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.
All Human Resources managers must assemble a policy manual on what procedures to follow when conducting background checks. Such details shall include what type of criminal offenses they are willing to forego and which crimes will not be permitted in relation to the job position.