Keeping Background Checks Legal Under EEOC Guidance

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eeoc background checks Keeping Background Checks Legal Under EEOC Guidance

The EEOC (Equal Employment Opportunity Commission) and the FTC (Federal Trade Commission) published a joint publication on employment background checks in 2014. The guide explains the rights and responsibilities of employers in addition to those of applicants.

The publication addresses three different phases of background checks—before getting the background information, using background information, and disposing of background information.
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An Introduction to Background Checks for Employers

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For the new HR professional, and perhaps even for more seasoned HR managers, the process of conducting background checks can be a difficult one to manage. Corporate Screening, one of ERC's Preferred Partners, has provided us with some background knowledge to help us answer our key questions.

What is a background check? Why should my company conduct them?

Background checks help employers minimize risk for their company and their employees. They provide varying levels of information, depending on the type of position and job duties. Job applicants, current employees, and volunteers may all be asked to submit background checks... and for some positions, screening is required by federal or state law.
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Hiring Practices: Checking Up on Job Candidates

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With an average “cost-per-hire” of just over $4,500 reported by Northeast Ohio organizations in 2013, making sure you are making the right hire on the first try is key. Admittedly, the selection process at each organization can incorporate any number and combinations of methods and should in fact be designed to reflect your organizational culture. Having a complete understanding of each potential new hire is a bit unrealistic, but by implementing a few basic practices during the hiring process, organizations can avoid awkward or potentially even legally complicated situations after-the-fact that could have been mitigated better up-front. We highlight a few of the more traditional methods reported in the recently published 2013 ERC Hiring Trends & Practices Survey below.

Background checks

2013 ERC Hiring Trends & Practices Survey found a strong majority very much in line with the 2011 results at well over 80%. As might be expected, background checks/screenings were conducted slightly less commonly among both non-profit organizations as well as smaller sized organizations with 1-50 employees.
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ERC Forms Partnership with Corporate Screening Services

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ERC has partnered with Corporate Screening Services, a leading provider of pre-employment screening products and solutions, to offer its members a free Screening Program Assessment (SPA) and discounted pricing on background screening. ERC members will receive at least 5% off all background screening products.

Corporate Screening combines state-of-the-art data gathering technology with in-depth examination and analysis to verify information and mitigate the risks associated with hiring employees. With offices in Cleveland and Tampa, Corporate Screening utilizes an expanding professional staff of 80 analysts and consultants to service the needs of hiring professionals representing a full spectrum of industries, with special emphasis on the healthcare, financial, manufacturing and higher education sectors.

“We’re thrilled to be partnering with Corporate Screening as we believe their products and processes are tops in the industry,” said Pat Perry, President of ERC. “Background screening is a popular outsourced solution for our members and we think they will be very happy with the service and quality at Corporate Screening.”

“Corporate Screening is honored to have been selected as ERC’s background screening partner especially in such a competitive market. We share many of the same values and virtues as ERC so this an incredibly natural fit. Our team is excited to continue ERC’s tradition of providing exceptional benefit to its members,” said Greg Dubecky, President of Corporate Screening.

For more information on the discounts available to ERC members, click here.

Do’s and Don’ts of Employment Background Checks

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The "Do's"

DO: Obtain Applicant Consent. The first step in pre employment screening is to obtain applicant consent. This isn’t just good advice—it’s also the law, as outlined by the Fair Credit Reporting Act (FCRA). You must make applicants aware that they will be subject to a background check, and the candidate/employee must sign a written consent form before you conduct the screen.

DO: Make Sure the Background Check Relates to the Job. Establish a clear link between the items you’re screening for in the background check and the job duties. Understand what you “need to know” and what could potentially violate an individual’s privacy rights or cause unfair discrimination.

DO: Apply Your Criteria Consistently. Another way to help keep your company within legal grounds and promote fair hiring is to make sure you apply your policy in a consistent manner. For example, for a particular job category such as “Help Desk Support”  make sure you use the same type of background check on everyone in that job category and that you use the same criteria for assessing the results. You can vary your background checks to make sure they are relevant for the job – but do not vary them within the same job.

DO: Notify Your Applicant of Any Records Found. Before you take any action on the results of a background screen in hiring, promoting, or suspending an employee, make sure you’re aware of the Adverse Action requirements. These requirements are mandated by the FCRA and are very specific about how to notify an applicant of an adverse decision you’ve made concerning the results of their background check.

DO: Consider the Use of Employee Monitoring After Hire: Just because an applicant has cleared a background check, don’t assume that you will know if and when that person might get into trouble once they are in your employ. Monitoring your current employees to make sure you know if an arrest occurs is a growing best practice.

DO: Establish and Publish Your Background Screening Policy. Make clear—in writing—your background screening policy. Detail what types of screens you conduct, and the information for which you’re screening. Make sure you include federal, state and local laws in your guidelines. Additionally, make it clear how you’ll apply your background screening results.

The "Don'ts"

DON’T: Create a Blanket Policy. Fair employment laws require that you only make hiring decisions based on job-related capabilities. Therefore, avoid bright line “no criminal record” policies. Often, old and non-serious convictions have little or no bearing on a person’s ability to fulfill the job obligations.

DON’T: Rely Solely on National Criminal Database Searches. With today’s mobile workforce, it’s wise to conduct criminal searches on a national level to see if there are any criminal activities beyond where your applicant works or worked. But, always back up your national search with a local-level search to verify the results. Otherwise, you’ll risk making decisions on old or potentially inaccurate information.

DON’T: Forget to Screen Your Subcontractors & Temporary Workers. Everyone who works for your company should undergo a background screen. This includes contractors and vendors who are working for you. There is a large body of legal precedent that suggests you can be held liable for anyone who is paid by you; whether they are an employee or a subcontractor.

Percentage of Companies that do Background Checks

Eighty percent of U.S. companies ran criminal checks on job applicants in 2011, compared to about 50 percent of companies in 1996, according to a 2012 report from the Society for Human Resource Management.