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Dear HR Generalist: We need to talk about your background checks

By: Celeste Ricco Tuesday, 18 October 2016

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HR is central to such much of a business' success. Your background checks fit in there too...

 

Dear Human Resources Generalists:


I respectfully request your attention regarding an urgent matter that could significantly impact your business’s well being.

Background Screening is an important part of the hiring process, but so many businesses get it wrong. I’m writing to let you know there is a consistent pattern in the mistakes that companies make. If you recognize these patterns and respond accordingly, a few simple changes could help save your business should you become the target of an investigation by FTC, CFPB or EEOC or a lawsuit.

I realize your time is limited and valuable. If you only have time to scan this article, please draw your attention to the bolded topics and pass this long to whomever is best equipped to evaluate the vulnerabilities described below and implement solutions for your organization.

1. Inconsistent and/or ineffective background screening practices, from your lowest pay grade up to the executive level, leave your business unnecessarily vulnerable.

Aside from the embarrassment of employing an executive who lied about their background, up and down the organization you could be putting employees, patrons and the company as a whole at risk.

This Oswego, NY nursing home did not consistently background screen all their employees, which opened the door to abusive practices. Even if you do not serve vulnerable populations, background screening could mitigate the risk of a poor hiring decision. Should it turn out a comprehensive background check is clear, it may at least offer some level of protection to your business.

The products you run in your background checks should match the position for which you are hiring, promoting, transferring or continuing employment. It does your business a disservice to overspend, and poses preventable risk to under spend.

2. Obtain a consent before beginning a background check and ensure your Consent Form is compliant with the FCRA, state and local laws.

Just about every year there are lawsuits resulting from non-compliant Consent Forms, companies running a background check without a signed Consent Form or companies not abiding by the "stand alone document provision" in the FCRA.

Our CRA-supplied Consent Form is FCRA compliant. However, because state and local laws and even industry requirements may apply, an employer should always have legal counsel review the document before use. Paying for a few hours up front may save hundreds of thousands should you be targeted by a lawsuit, likely to be class action.

3. Follow Adverse Action whenever a background screen, all or in part, influences an employment decision that is unfavorable to the applicant or employee.

A handful of lawsuits every year reflect three oversights, almost exclusively:

1. The employer did not follow FCRA requirements for Adverse Action at all.

2. The employer did not wait a “reasonable amount of time” between sending the Pre-Adverse Action Letter and final Adverse Action decision.

3. The employer provided only one notice of Adverse Action, not both.

In addition to FCRA violations, employers should also expect increased vulnerability when Fair Chance Act violations are present, such as Article 23-A requirements in NYC. This is a sample of a requirement in addition to FCRA Adverse Action specifications.

Whether or not the oversight is intentional, Adverse Action is inescapable and should be taken seriously. Much like the zombie apocalypse... but in real life.

4: Expect those running and using background checks to make employment decisions at a minimum be familiar with the below guidance and proper application:

EEOC Individualized Assessment – guidance on the applicant of arrest and conviction records in the hiring process.

FTC – Background Checks: What Employers Need to Know – summary of how to request and use background reports according to federal law.

I respect that most companies cannot afford an attorney on retainer, who would be expected to keep the organization informed of anything that could impact your background screening process. That being said, ignorance of the law is not defensible.

In addition to at least intermittent meetings with legal counsel, identify a reputable local employment law firm who consistently publishes blogs on employment court decisions and new statutes. Better yet, find several in case something is missed. Subscribe whomever in your organization is best capable of staying on top of anything impactful.

5. Should the subject of a background report ask for a copy, provide it. Should the subject identify anything incorrect on the background report, let them file a dispute with the CRA who ran the report.

According to the FCRA, employers must disseminate a copy of the background report upon request by the subject, also referred to as the "consumer". There is no lawful cause for an employer to refuse this request. Similarly, the consumer can always dispute information he or she identifies as inaccurate, even if this particular record did not influence your hiring decision. 

Similar to non-compliance with Adverse Action and Consent Forms, there are always a handful of single plaintiff and/or class action lawsuits where employers outright refuse or have placed an undue burden on the subject of a background report who requests a copy or asks to file a dispute.

Employers who fulfill legal obligations consistently, make a best effort toward compliance and avoid processes that burden the consumer tend to be more successful when defending a claim or have been granted leniency.

 

I realize it is unlikely that you, as a HR Generalist, who dictates how or even why you background screen.

Therefore, if you’ve identified vulnerabilities within your organization, I encourage you to communicate what you’ve discovered up the chain of command.

Actively pursue compliant employment and pre-employment background screening as an organizational priority. 

This is accomplished not only when the highest level of compliance is expected, but also by recognizing employer responsibilities when background screening, maintaining knowledge of each individual service, and understanding how to best use the information contained in a report. Doing so will maximize every dollar spent on background screening, enable better hiring decisions and possibly help you avoid, or at least better defend, a lawsuit or investigation.

Please understand that this letter does not cover all necessary areas of compliance, pending or decided litigation or statues. The most effective way to achieve compliance is to contact a credible background screening company, like Choice Screening.

Kindest Regards,

Choice Screening

Englewood, CO

Background Screening since 2006

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Topics: Compliance, Adverse Action, Best Practices, Industry Resources, Background Check

Celeste Ricco

Background screening enthusiast. Blogger. FCRA Advanced Certified by NAPBS. Dedicated to all things background screening!