Pre-employment background checks are a critical component of the hiring process. Job applicants must be screened extensively to determine if they are the best fit for the job, and conducting background checks is the best way to do that.
What every employer must remember when it comes to doing a background check on a potential hire is the fact that it must be conducted judiciously. Otherwise, the company risks incurring liability for hiring discrimination, privacy violation, and more.
Here are the best practices all employers must follow to avoid any unwanted problems or legal issues:
- Research about your state and federal laws
State and federal laws govern the practice of conducting background checks on job applicants. Make sure that your process completely complies with these laws to ensure that you and your company are free from any liability.
If you are working with a third-party background check provider instead of performing your own checks in-house, you are required to comply with the Fair Credit Reporting Act (FCRA).
- Obtain written permission from applicants
The FCRA requires employers to notify and obtain written permission from potential hires prior to conducting background checks. In addition, employers are also required to inform the applicant that the information that shall be obtained through the search may be used to make hiring decisions.
- Define the nature and scope of the background check
Prior to conducting a background check, it is important to be specific about what you are looking for. It can be costly and time-consuming to perform a full background check, so it is important to identify what information you need to help you make an informed hiring decision.
Outline the important details that you will need, such as the applicant's work history, educational background, criminal records, credit report, and more.
Also, according to the FCRA, applicants must be informed of their right to a full description of the nature and scope of the background check if it is an "investigative report," which is a very detailed background check that includes information of a more personal nature that scrutinizes the applicant's character, general reputation, and overall lifestyle.
- Equal process for all applicants
The screening process must be consistent with everyone. Requiring background checks for some applicants while not requiring it for others is a surefire way to open your company up to the legal implications of discrimination, especially if your basis for requiring the background check on certain applicants has anything to do with race, gender, religion, disability, age preference.
To avoid breaking any federal non-discrimination laws, always treat job applicants fairly and equally by subjecting them to the same screening process.
You may scale background searches according to the position available, as some positions may pose a higher risk to your company and therefore require a more extensive background search.
- Allow applicants the chance to explain or clarify negative information
If the background search yields any type of negative information that may cause you to reject the applicant, give him a chance to explain or clarify before you make a final decision. This will help protect your company from any liability, as making an adverse hiring decision based on the background search without discussing it with the applicant can have negative consequences down the line.
As comprehensive as a background search may be, it may still have its limitations in terms of telling the whole story.
- Not all applicants with criminal backgrounds should be rejected
Most employers are generally predisposed to reject job applicants with criminal backgrounds, but this should not be the case. Adopting a blanket policy that bans all applicants with criminal records from gaining employment can be harmful to your company, as it can lead to charges of unlawful discrimination.
According to the U.S. Equal Employment Opportunity Commission (EEOC), the employer must be able to show that its decision to reject applicants based on their criminal history is "job-related and consistent with business necessity." This is further explained in the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII: "To establish that a criminal conduct exclusion that has a disparate impact is job-related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position."
- Try doing a background check
Some companies opt to perform background checks in-house, but most prefer to outsource to third-party providers that conduct investigations and compile comprehensive background reports.
If you choose to do the latter, work with a reputable background check provider to ensure that each report contains relevant, accurate, and verified information. Also, it is absolutely critical that your chosen provider is FCRA compliant.
When conducting a pre-employment background check on a job applicant, always make sure that every action and decision you make complies with all applicable laws and regulations. Follow best practices and stay informed regarding relevant legislation to ensure that you and your company are safe from any possible legal problems or implications.