Common Pre-Employment Screening and Background Check Mistakes
You’ve found an amazing candidate and are ready to make an offer, but a question comes up about conducting a background check. If you’re uncertain about the compliance and best practice pieces behind pre-employment screenings and background checks, don’t worry — you’re not alone!
We have our very own background check company, BackgroundBrief, and work closely with the pre-employment screening experts over at CrimCheck. We talked to CrimCheck’s Vice President of Sales, Jeff Sosic, to learn more about these screenings.
He provided some great insight into some common mistakes made by employers when it comes to pre-employment screening, how to avoid those and the associated risks. Continue reading to learn more about what Jeff told us.
What are the most common mistakes companies make when using pre-employment screening to make employment decisions? Do you have any advice on how to avoid them?
Improper Disclosure and Authorization Forms
Employers open themselves up to risk if they don’t properly disclose that they’ll be running a background check or if they fail to gain prior authorization to run it.
In order to mitigate these risks according to the Fair Credit Reporting Act (FCRA), the proper way to approach disclosure and authorization includes the following:
- Separate Stand-Alone Disclosure Form – This will consist of only the disclosure and seeks to inform candidates that you’ll be running a background check.
- Authorization Form – This requests consent from the candidate to run the background check.
- Timing of Disclosures/Authorizations – This should occur before the background check is processed.
- Consumer’s Rights under FCRA – The ability for the applicant/employee to obtain a copy of the background report.
- Protection – There should be an assurance that the report won’t be used to violate any equal employment laws.
To learn more about understanding disclosure and authorization forms, check out this article from CrimCheck.
Not Sending Adverse Action Notifications
CrimCheck defines adverse action as “any decision that is made against the interest of an employee or prospective employee.” Most commonly, this is used in the context of employers denying employment to a candidate based on the results of a background check.
The process of making this type of hiring decision requires what’s called the three stages of adverse action: pre-adverse notice, the waiting period, and adverse action. If adverse action notifications aren’t done properly, you could face legal repercussions.
Here’s what Jeff recommends to make the adverse action notification process go smoothly:
- Establish policy practice for adverse action (who, what, why, how)
- Know what to include in the pre-adverse notice:
- Notice of why the applicant was not hired
- A full copy of the report and summary of their rights under the FCRA
- Address and telephone number of Consumer Reporting Agency (CRA)
- Information clarifying the CRA did not make a final hiring decision
- Opportunity for the applicant to dispute accuracy within a certain timeframe
To learn more about adverse action, check out this blog written by CrimCheck.
How far back are employers allowed to go during a background check? What should they do if a hit comes back that’s beyond this time frame?
According to FCRA rules, convictions can be reported on the background screen regardless of when they occurred. However, several states limit the timeframe of conviction reporting to seven years.
These states include California, Kansas, Maryland, Massachusetts, Montanan, New Mexico, New York, New Hampshire, and Washington.
States have specific laws regarding how employers can use the information contained in the criminal record during the hiring process, such as “ban the box,” an initiative by advocates for ex-offenders aimed at removing the check box that asks about a candidate’s criminal background.
The momentum for the national adoption of “ban-the-box” laws is steadily gathering pace. Currently, there are 24 states and 150 cities that have adopted ban-the-box laws.
Check to see if your state has ban-the-box laws here.
What important things should employers look for when they receive a completed screening report?
If you decide that conducting a background check is something you’d like to pursue with a candidate, there are a couple of things to consider if a report comes back with any hits.
In order to avoid discrimination based on past criminal history, consider the following if the background check comes back with any red flags:
“The EEOC recommends doing an individualized assessment of relevancy to a specific job and the time that has passed,” adds Jeff.
Just because a candidate has a criminal history, doesn’t mean they should automatically be disqualified from the position they were being considered for. It’s important to make a fair and educated decision based off the information you receive from the report based on legal guidelines.
When would it be justified to conduct an employment credit check? Can candidates be denied employment based on their credit score?
We strongly recommend being very selective on when you conduct an employment credit check. There are certain positions that do warrant an employment credit check.
These could include, but are not limited to, the following situations:
- The role involves access to confidential financial information.
- The role involves financial responsibility to a customer or employer (issuing payments, handling payroll, etc.)
- The candidate will be working at a bank, credit union, or other financial institution.
Even if conducting a credit check seems necessary for the position you’re hiring for, this doesn’t necessarily mean you’re good to go. Under certain state laws, this type of pre-employment screening is considered discriminatory and therefore, not allowed or limited in use.
Such states banning this type of screening include California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington.
To see if your state allows you to use credit information in employment decisions, contact your state department of labor or visit this site to find your state.
Jeff recommends the following things to consider when processing employment credit reports:
- Compliance with federal, state, and local laws
- Clear policy or practice of what positions will be in consideration of credit histories
- Job relevancy
- Obtaining the proper authorization forms
- Are your HR professionals and/or hiring managers properly trained on how to use interpret credit reports?
What are some other compliance pieces employers should be aware of when conducting a pre-employment background check?
The background check and pre-employment screening world can get very complex, so we asked Jeff to provide a short synopsis of compliance pieces employers should be aware of when conducting these reports.
The following is a summary of the Fair Credit Reporting Act (FCRA) guidelines:
- Employer Certification to Consumer Reporting Agency (CRA)
- Disclosure and Authorization form supplied and completed
- Pre-Adverse Action Notice
- Adverse Action Notice
- Document retention and destruction
For more information on background checks and pre-employment screening, check out our background check company, BackgroundBrief. We work closely with CrimCheck to conduct our background checks and screenings to help you navigate uncertainty and create safer environments for your employees, customers, and partners. To learn more about BackgroundBrief, contact Ana Brady.