Background Screening is an encouraged practice during hiring or promoting employees because it promotes a safe working environment, reduces risk to the organization, and helps employers make informed decisions. However, the EEOC clearly states that an employer cannot perform a background check or use that information if it violates equal employment opportunity whether intended or not.
As is standard in this industry, there are a lot of regulations surrounding pre-employment screening. We hope this publication will give you guidance to effectively navigate hiring all while maintaining equality.
Who is Considered an Employee?
Under federal employment discrimination laws an employee is:
- Individuals that are employed full time, part time, seasonally, or temporarily.
- Individuals under a work program assigned to your organization.
- Volunteers
Protected Classes
- Race
- Color
- Religion
- Sex
- National origin
- Age
- Disability
- Genetic information
These individuals are also protected from retaliation due to filing a complaint of discrimination.
Do Discrimination Laws Apply to Your Organization?
Ultimately, the answer to this question is broken down by how many employees you have:
- 1 employee: you are required to provide equal pay for equal work to both male and female employees.
- 15-19 employees: you are prohibited to discriminate based on race, color, religion, sex, national origin, disability, and genetic information. You are also required to provide equal pay for equal work to both male and female employees.
- 20+ employees: you are prohibited to discriminate based on age, race, color, religion, sex, national origin, disability, and genetic information. You are also required to provide equal pay for equal work to both male and female employees.
Key Considerations When Conducting Background Checks
Background Check for the Position, Not for the Individual
Different positions often times require different background check services. For example, a sex offender search is appropriate for a church volunteer, whereas a medical registry search is appropriate for a travel nurse. Select background check services based on what pertains to the job; as long as you run the same services for every applicant interviewing for that same job.
Please note: if you run alias name searches on female applicants (because of maiden names), you must run alias names on all male applicants.
PRO TIP: Create customizable packages for specific jobs. Refresh your memory on discrimination and protected classes with the EEOC Enforcement Guide
Follow The Adverse Action Process When Making an Employment Decision
The FCRA specifically outlines three goals for the adverse action process:
- Inform the applicant of their rights under the FCRA.
- Ensure the applicant knows adverse action was taken based all, or in part on the results of a background report.
- Allow the applicant to review the background report and dispute any inaccuracies.
The Adverse Action Process has three stages:
- Pre-Adverse Action Letter
- Waiting
- Post-Adverse Action Letter
Background screening is an essential part of an employer's hiring, transfer and promotion strategy, using both criminal records and credit reports. The use of background screening can effectively protect employees, assets, clients and patients. While you work to maintain a compliant and comprehensive background screening strategy, keep up with current legislation, and consult with an experienced employment attorney to help mitigate the risk of your background checks adversely impacting a protected class.
Do you still have questions? Visit the EEOC website for more information. Or give one of our expert account advisors a call.
This blog is intended for Choice Screening's current or prospective clients and partners and may not be forwarded outside of Choice Screening, posted online, or otherwise reprinted in whole or in part. The information contained in this blog is meant to be informative only, it is not all encompassing, nor contains legal advice, expressed or implied. Consult with qualified legal counsel in all matters of employment, business, and background screening law.
