Conducting background checks on potential employees, tenants, or other individuals is a prudent step for many organizations; however, it’s a process filled with legal landmines that can trip up even the most well-intentioned employers and landlords. To ensure that you’re compliant with the law and treating applicants fairly, this comprehensive guide will navigate you through the essential do’s and don’ts of the background check process.
Introduction
Background checks serve as a critical component to ensure the security, reliability, and integrity of an organization’s recruitment process. They can help verify the qualifications and histories of potential hires and maintain a safe working environment for current employees. Though beneficial, the legal complexities surrounding background checks require careful attention to comply with various federal, state, and local laws. Failing to do so could lead to legal disputes, financial penalties, and damage to your organization’s reputation.
The Legal Framework for Background Checks
Before delving into the specifics, it’s important to understand the general legal framework governing background checks in the United States. The primary federal law in this area is the Fair Credit Reporting Act (FCRA), which sets national standards for employment screening. Additionally, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employment discrimination. Lastly, individual states often have their regulations that may impose additional restrictions or requirements.
Do: Obtain Consent
Always obtain written consent from the individual you’re screening. Under the FCRA, you must notify the person that you will conduct a background check and get their explicit authorization to do so. This notice must be in a standalone document separate from the job application or any other forms to ensure clear communication.
Don’t: Use Prohibited Information
Be careful about the information you use in making your decision. Some information, such as bankruptcy history or medical records, has restrictions on it. Additionally, ensure that your practices are consistent with anti-discrimination laws. Decisions should never be based on race, national origin, color, sex, religion, disability, genetic information, or age (if the candidate is 40 or older).
Do: Ensure Relevance
Make sure the checks you conduct are relevant to the job at hand. A credit check might be essential for a financial controller position, but not for a warehouse staff role. Conduct background checks selectively and based on the requirements of the position.
Don’t: Overlook Applicant Notification
If you decide not to hire someone based on the results of a background check, the FCRA mandates certain protocols. You must provide the applicant with a pre-adverse action disclosure, a copy of the background check report, and a “summary of rights” under the FCRA. This gives the applicant an opportunity to review the report and dispute any inaccuracies before you make your final decision.
Do: Maintain Confidentiality
Information obtained through background checks is sensitive and should be treated as such. Properly store all background check reports and ensure that only authorized personnel have access to this information to prevent any data breaches or privacy violations.
Don’t: Neglect to Review Your Policies
Laws and regulations regarding background checks frequently change. Regularly review your background check policies to make sure they’re up to date with current legislation. Consulting a legal professional with expertise in employment law is highly advisable to avoid inadvertent non-compliance.
Conclusion
The proper execution of background checks is an intricate balance of legal compliance and ethical responsibility. As an employer or landlord, you must stay informed of the evolving legal landscape and ensure that your practices meet regulatory standards.
Companies like HireRight, Sterling, and Checkr are major providers known for offering compliant background check services. They provide tools and support to navigate the complex requirements of FCRA, EEOC, and state laws, offering a variety of checks ranging from criminal records to education and employment verification.
Remember, the goal isn’t just to protect your organization but also to uphold the rights and privacy of those you’re investigating. By adhering to these do’s and don’ts, you can foster a trustworthy environment that respects both your needs and those of your potential constituents.