EMPLOYMENT BACKGROUND CHECKS

Employment Screening Services Guide

Pre-Employment Screening Background Check Guide

The value of pre-employment screening has been well established.
And, over the past 10 years or so it has become a highly automated process.

Almost all businesses, health care providers, churches and all other organizations have determined that the the basic building block of protecting their organization is a quality employment screening program.

Thanks to automation, the employer’s ability to complete an in depth employment screening background check, pre-employment drug screening  and credential verifications has become much easier.

From the employer’s point of view, the employment screening ordering process is largely automated. This makes ordering pre-employment criminal records background checks, driving records, drug screening and other pre-employment screening services as easy as selecting from a menu of employment screening services.

This is not so simple from the employment screening company’s perspective.  The employment screening service provider must comply with many Federal and state laws in researching and reporting the background check information requested in an employment screening program.

Moreover, the employment screening company must access county and state criminal records repositories that do not always share the employer’s sense of urgency in making hiring decisions.

And of course, while the ordering process is simple, an employer’s compliance with the numerous Federal and state laws governing the hiring process are not.

These ever changing laws describing what an employer may or may not do as part of the hiring process requires the utmost attention and professional monitoring to be sure compliance is maintained.

The costs associated with employment practices liability coverage are often a direct outgrowth of these talking points.

Certainly the prudent HR or hiring manager might want to review some of the items in this guide for their own employer’s compliance.

From an insured’s perspective, the best losses are the ones they never have because applicants that produce losses and litigation were never hired.

Employment screening law enforcement has been moved by the current administration from the Federal Trade Commission (FTC) to the Consumer Financial Protection Bureau. Enforcement of of the laws surrounding employment screening have received heightened enforcement by this new Federal agency.

It is important to review the following aspects of a businesses employment screening program.

1. Are you currently getting a check of Federal criminal records as part of your pre-employment background checks?
Many employers think they do, but in fact Federal criminal records checks may not be a part of their current employment screening program.

Since about 10 percent of all criminal arrest records are now in the Federal system, many crimes such as embezzlement, credit card fraud etc., are prosecuted in the Federal court system and will not appear as part of a routine state or county criminal records check. This important records check should definitely be a part of any background check.

2. Develop a written policy describing in detail the types and levels of criminal records that will preclude employment in your organization. Guidance tip: Be sure you apply these restrictions consistently and fairly to avoid charges of discrimination.

3. Is your business or organization getting instant driving records on all applicants as the first part of the employment screening process?
Many times having the results of an instant driving record saves the client from incurring any further costs associated with the hiring process such as interviews and further background checks.

3. Are all of the the background screening program components FCRA (Fair Credit Reporting Act) compliant.
Beginning with the authorization/release form?

4. Is it a stand alone release as required by law? (soon a two page release will be required to be legally compliant)

5. Review compliance with the EEOC guidelines to make sure your hiring practices and criteria do not result in “Disparate Impact” on minorities.

6. Does the applicant release form disclose the nature and scope of the background check? * Cautionary guidance note: In light of recent lawsuits in 2016, if your business uses an online employment application
you must be sure that the online release applicants are required to sign for an employment screening background check are a completely stand alone page.

This means the release must be a completely separate page from the rest of the employment application and not have any other “distraction” language on the release form.

6. When a decision not to hire is made based on a background check result are the two part adverse action laws complied with?

7. Is the applicant provided a copy of the record if adverse or negative action is taken based on the report?

8. Is the applicant provided with a revised copy of the Summary of Rights as required by Federal law updated January 2013?

9. Guidance on database searches: Database criminal record background checks are not by themselves legally compliant for an employer to use in an employment decision.

Database searches are cheap because the miss 30 to 50 percent of criminal records.. And, they do not comply with the FCRA which requires up to date verification of criminal records when used in employment decisions.

10. Use of Polygraphs in employment screening. While there are exception for certain jobs such as armored car drivers, certain pharmaceutical employers.
The Employee Polygraph Protection Act prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.

11. Guidance on use of honesty tests:
There is no federal law specifically prohibiting you from giving  a written honesty test to job applicants. Nonetheless, these types of tests may violate federal and state laws that protect against discrimination and violations of privacy.

12. Guidance on the two primary responsibilities the FCRA imposes on an Employer?

A.  The employer must obtain a signed consent form from the employment applicant, and providing the employment applicant with a written disclosure that a background check may be requested.

The forms that must be signed include the Authorization for Release of Information Form and the Disclosure Form.

The release must be on an entirely separate form and can not b part of the employment application nor may it contain any other language except the release.

Should the background check (Consumer Report) include derogatory information that causes the employer not to hire an applicant, the following steps must be taken:

The applicant must be given a copy of the background check (Consumer Report) along with a “Pre-Adverse Action Notice,” and a copy of the “Summary of Rights Under the FCRA.” Examples of these letters are included in our site map.

If after a reasonable period of time the employer makes a final decision not to hire the applicant, the employer should send the applicant an “Adverse Action Letter” and another copy of the “Summary of Rights Under the FCRA.”

The applicant has the right to dispute the accuracy of the information included in the background check. If so, the background screening company has a duty to re-investigate within 30 days.

Contact information for the screening agency that completed your applicant’s background checks is included in the Adverse Action Letter, and the candidate should contact them directly.

13. Be careful to comply with all employment screening laws.

Our page on FCRA violations provides useful and current information and guidance on complying with these laws. Click Here

14. Gaps in Employment

Employers should take a careful look at gaps in employment that are not easily explained or verified such as layoffs etc.
Gaps in employment often are an indication of time spent in custody, or a criminal record the applicant did not disclose.