Mitigate HIRING RISK
Employee Screening Compliance
Interested in avoiding class-action litigation related to use of background check information? So are we. The following summary of guidelines provide a starting point to assist in modifying any non-compliant practices your organization may inadvertently be conducting.
- Consistently apply the screening process across all applicants.
- Run the same packages for same or similar positions, customizing package by position type and never by applicant.
- Make sure you obtain written authorization from every applicant prior to running a background check.
- Review your background check authorization form. The disclosure must be in the form of a "standalone" document to ensure it complies with FCRA requirements. The authorization by the consumer may be part of the disclosure document, but no other extraneous items should be included. NEVER add disclaimer/indemnification language to this form or merge it with the rest of the job application.
- Over the years, Employment screening rules and requirements have been shaped by both legislation and case law. The general direction of these changes has been one of increased consumer protections and also unfortunately increased employer liability for relatively minor errors or oversights. Employers must pay attention to legislative developments and court decisions affecting the use of background checks and drug / alcohol screening for purposes of employment. Good sources of updated information include authoritative sources the Society for Human Resources Management SHRM and the Professional Background SCreeners Association PBSA.
15 U.S.C. § 1681b(b)(2)(A) states:
A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless—
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
- Follow FCRA notification requirements when using a consumer report to make a no-hire decision. This means ensuring the Pre-Adverse and Adverse letters are sent in a timely fashion and allowing the applicant sufficient time to respond.
- Consider applicants with reportable criminal records on an individual basis and take into account the type of offense, how it relates to the position and the amount of time since it occurred.
- Note any special notification requirements or criminal records usage restrictions in your specific state or jurisdiction.
- Pay attention to legal developments. If your current screening company is being litigated against by consumer class-action attorneys, be sure to understand why they are being sued and ensure you do not follow the practices that got them there in the first place. Don’t know if your screening company has a history of FCRA litigation? An online search by company name along with the words “Class Action” will reveal active and settled cases.
- Consult with your legal counsel about adding an arbitration agreement to your employment process that precludes class action arbitration.
- Finally, partner with a screening company like AtBackgrounds that knows and follows the rules, has experience and keeps you updated on the latest developments around hiring risk mitigation.
Have a compliance question? Not sure about your process? Worried about a certain aspect of your screening procedures? Give AtBackgrounds a call. We are happy to help.
Read and Understand FCRA and EEOC Requirements – Useful Employer Links
The following links offer guidance to employers in the correct use of consumer reports for employment decision-making purposes.
Best Practices from TransUnion
Employer Guidance from the Equal Employment Opportunity Comission
- Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act
Using Consumer Reports - What Employers Need to Know - Federal Trade Commission
We are not attorneys. Nothing within this site may be construed as legal advice but rather a brief compilation of our knowledge and experience. AtBackgrounds is not responsible for content found through external links on this site. Consult with your own legal counsel for legal advice.