How to Get Background Screenings Right
Background screening has become a normal part of the hiring process in the United States. But, there are some important points for companies to remember before digging into a potential employees’ background and using that information to make hiring decisions.
What Are The Different Types of Background Checks?
Whether you call them background screenings, background checks, or pre-employment screenings, there are a number of different checks available to run before you hire someone. The level of these will usually depend on the type of company and the type of role being applied for.
In the U.S., employers may carry out a variety of checks, including education, employment, criminal history, credit history, license validation, and drug testing. The results of these checks will help to verify different factors relevant to the role being offered, such as whether their education and employment history confirms that they are qualified for the offered role and whether there is anything in the employee’s criminal history that may jeopardize the security or safety of the company and its employees.
Background Screenings: Best Practices
Background screenings are designed to protect your company, your employees, and your clients. However, they are tightly regulated by federal, state, and local laws. In all cases it’s important - and a legal requirement - to make sure that all applicants and employees are treated equally. This means that all background checks for applicants to a given job title/pay band/etc. will need to consist of the same “nature and scope” and must be subject to a consistent adjudication process.
Before running a background check, an applicant must give written consent with a consent and disclosure form. This form must outline the nature and scope of the checks that will be run and must notify them of their rights under the Fair Credit Reporting Act (“FCRA”).
It’s also accepted best practice to never run a background check on an applicant before they have accepted the role that is offered to them, though this isn’t a legal requirement in all jurisdictions. The offer you make to the prospective employee can rely on the successful passing of an employment screening, but if you run them before the acceptance of the role you can expose your organization to discrimination-based risk or violation of state and local laws.
Things to Consider When Conducting Background Screenings on Workers
Criminal background is one of the most common checks for most employers. These checks can reveal arrests, convictions, court records, warrants, sex offenses, and incarceration records. Under the FCRA, criminal background checks cannot contain records of civil suits or arrests after seven years, while criminal convictions can remain indefinitely.
It’s important to note that there are certain cities, such as San Francisco, that do not allow employers to see a conviction if it is more than seven years old, and prohibits employers from considering an arrest not leading to a conviction in the hiring process.
Other jurisdictions including Texas and Colorado have a salary threshold that must be met before certain criminal history can be reported. Credit checks are one of the more complicated on the list and must be carefully considered to adhere to requirements set by the FCRA. This check will often be used when hiring for roles that involve access to money such as cashiers, bookkeepers, and high-level sales positions. Most background checks will be completed within 72 hours, but keep in mind that certain types of checks can delay a search, sometimes significantly.
GED and high school verifications, military service, some criminal jurisdictions, and anything outside the United States will take longer to verify. Also, roughly 10% of employment searches will not be verifiable, due to companies purging their records or failing to respond to the agency’s requests after a reasonable amount of time and effort.
What happens if You Don’t Hire an Applicant Based on their Background Screening?
If the results of a background check mean that you decide not to hire an applicant, you must provide them with a copy of the report along with a copy of the summary of rights under FCRA in what is commonly referred to as the “Pre-Adverse Action” process. During this time, you must hold the role open to allow the candidate an opportunity to contest the results of the screening.
While there is no federally mandated timeframe, the generally accepted reasonable standard is five days. Some jurisdictions, like San Francisco, require up to a week, so you should always consult local laws prior to taking adverse action. Should the applicant not provide sufficient contradictory information after that time, “Adverse Action” can be initiated and the job reopened to other candidates.
Other Employment Laws You Should be Aware of
Anti-discrimination laws make it illegal to check the background of a person based on their race, national origin, color, sex, religion, disability, genetic information (including medical family history) or age (40 or older). To minimize the risk of this happening, even unintentionally, you should carefully view your company’s screening processes and ensure that you are following all federal, state, and local laws.
It’s always a good idea to get the advice of a legal expert in reviewing your hiring practices. More recently, “Ban the Box” has been gaining traction in the United States which prevents employers from inquiring about an applicant’s criminal history prior to making an offer of employment.
Efforts to prohibit credit checks and to forbid employers from divulging the salary history of their former employees have also made significant progress in state and federal legislatures. With significant penalties looming, keeping informed about new laws and regulations that affect your organization’s ability to conduct background checks on candidates and employees is paramount.
If you have any concerns or questions about background screenings and would like to talk to one of our team, get in touch here.
Disclaimer: All information written here is for general informational purposes only and is not intended to be a substitute for professional and/or legal services.