Earlier this week we discussed the importance of developing strict compliance routines when conducting background checks. Whether you’re screening candidates in house or contracting with a nationally-accredited Consumer Reporting Agency (CRA) like Active Screening, you need to be aware of the federal, state, and municipal laws surrounding background checks. The chief law governing the screening industry is the Fair Credit Reporting Act (FCRA) and the Equal Employment Opportunity Commission (EEOC) is the main government agency who oversees its guidance (although the Federal Trade Commission (FTC) also plays a watchdog role). If you don’t comply with these laws, you could face costly class action lawsuits.

In a new essay in the National Law Review, this attorney reports that the long reach of the EEOC and FTC will continue to affect the screening industry and, most importantly, the employers who wish to use background checks to vet candidates. This is
happening despite a recent embarrassment the EEOC suffered when one of its class-action lawsuits was tossed because an expert witness used faulty hiring statistics.

The employment lawyer claims that one bad court case won’t slow down the EEOC’s condemnation of illegal hiring practices and could bolster the agency’s commitment to conducting high-quality research to back its claims of discrimination or lack of compliance. He offers these tips to employers should they implement background checks (all of these originally appeared in their entirety in “Background Checks – EEOC Seeks to Eliminate Barriers to Recruitment and Hiring”):

  • Know the applicable state and local laws regarding reliance on criminal history, consumer credit, or other background checks, and monitor these laws for any changes.
  • Treat all applicants or employees equally when deciding whether to gather background information.
  • Where criminal history is obtained, use that history as the basis for an adverse employment action only if it is job-related and consistent with business necessity.
  • Prior to refusing to hire or rescinding a job offer based on criminal history, conduct an individualized assessment, including providing an opportunity for the person to explain any criminal arrests, convictions, or other criminal records, and use any criminal history as the bases for an adverse decision only if it is job-related and consistent with business necessity.
  • If an individualized assessment of criminal history is not feasible, automatically exclude applicants for a job only for specific criminal offenses that bear a nexus to that job. 
  • Avoid making arrest record inquiries because they are prohibited in some jurisdictions and come with increased scrutiny by the EEOC. If you do seek arrest records, then carefully consider their import, as they are prone to error and are not final. Additionally, further investigate any arrests to determine whether and how they were resolved.
  • Review the specific criminal history inquiries currently made to ensure that language is included that indicates that any disclosures will not automatically result in disqualification of an applicant, and provide an opportunity for an applicant to further explain any criminal convictions and/or criminal records disclosed.
  • Ensure any background checks are compliant with the FCRA

NAPBS-accredited-News One of the best ways to follow all of these tips is to contact a reputable, trustworthy screening agency who has experience conducting background checks in a variety of industries. It’s also important to work with a team of experts who has your best interests at heart, and not their own. That’s what Active Screening provides. We are nationally-accredited by the National Association of Professional Background Screeners (NAPBS) – this means we exceed industry-standards in compliance, services, technology, and accuracy. We also specializes in these industries:

If you have any questions about the screening industry, or you’re curious about the screening policies and procedures used at your business, we encourage you to give us a call at 1-800-319-5580. We believe in the importance of vetting candidates through background checks AND we believe in the importance of following the laws, rules and regulations that bound our industry. We want you to feel confident and comfortable you’re doing everything you can to keep your workplace safe and stay within the confines of compliance. Active Screening can help. Email us here today.

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