Background-Screening What To Watch For

Background screening is more challenging than ever for employers. Consider just the following: the risk of negligent hiring, inadequate practices by background-screening firms, application authorization forms, the Equal Employment Opportunity Commission's (EEOC's) guidance on hiring individuals with criminal backgrounds, "ban-the-box" laws, and adverse action letters.

Negligent Hiring

Negligent hiring claims remain a liability risk for employers. These claims basically mean an employer is responsible to exercise due diligence that someone they hired doesn't pose a risk to team members or the public. The standard is what the employer should have known, not what the employer knew, about the person hired.

A comprehensive background check will include:

  1. A national criminal background check.
  2. A Social Security trace.
  3. A background check of counties where the individual has lived for the last seven years.

That's your baseline, It could vary by state.

Inadequate Practices by Background-Screening Firm

Quality assurance is a problem in the background-screening industry.

One screening firm decided it would protect itself from liability by looking only for criminal records with exact full dates of birth. This meant many records were overlooked.

Some of the background-screening firm red flags, including:

  1. Claims that sex offender searches are run separately. These are included in national criminal background checks.
  2. Claims that 90 percent of background screens are done in an hour.
  3. If the firm offers a pass/fail system. Get "must pass background check" out of policies and advertisements, EEOC views this language critically.

Applicant Authorization Forms

Applicant authorization forms have completely changed recently. Many people mistakenly think disclosure and consent forms are the same.

A slew of forms is needed now, including:

  1. A disclosure to run the background-check form.
  2. A form noting that a background-screening firm will be used, if that's the case.
  3. Applicant authorization and acknowledgment, which grants the employer permission to run the background check.
  4. Other state and local law notices.

Make sure the forms are separate and not in the job application, she said. If completed online, the forms should open in separate windows, not one long scroll, she cautioned.

EEOC Guidance

The EEOC's 2012 guidance on criminal background checks discourages blanket exclusions of individuals convicted of criminal offenses.

Evaluate so-called green factors to determine whether someone is a viable candidate. These factors include:

  1. The nature and gravity of the offense.
  2. The time passed since the offense.
  3. The nature of the job sought.

Ban-the-Box Laws

Ban-the-box laws are an effort to stop the cycle of poverty to prison and vice versa.
The old practice of job applications having a checkbox for someone to indicate if they were convicted of a crime or a felony isn't permissible where these laws are in place. Instead, employers in these jurisdictions must look at the candidates as individuals and determine if the person might be a good fit.

Approximately 35 states have ban-the-box laws that apply to public employers, while 13 states have ban-the-box laws applying to private employers. Cities often have ban-the-box ordinances as well.

Don’t run a background check until you’ve made a conditional offer.

Adverse Action Letters Changed

Please note so-called adverse action letters have changed within the last year. In some jurisdictions, employers must list the convictions that affected their decision in turning down a candidate after a background check.