Maintaining effective background check processes requires protecting the applicant’s rights as well as supporting the employer’s pursuit of information. Many pieces of recent legislation aim to ensure that applicants’ information is collected in a fair and secure manner; all employers should be aware of key aspects of these regulations to make sure they are in compliance to avoid needless lawsuits and potential fines and penalties.
In 2018, California enacted the Fair Chance Act, also known as the “Ban the Box” law, which generally prohibits employers of more than 5 employees from asking about your conviction history before making you a job offer. The law is intended to eliminate employer bias against individuals with a criminal history that they are seeking to move past. The Fair Credit Reporting Act manages the employer’s ability to probe an applicant’s credit history by monitoring what access the employer has to the individual’s records and ensuring the applicant provides proper consent to the credit report. The stipulations of these laws can be complex and often change year to year or between municipalities. Here are 5 tips for employers to stay compliant when conducting background checks:
1. Refine your hiring process - Employers in the state of California cannot include a question asking about an applicant’s criminal history in their application materials or at any point in subsequent interviews before providing a conditional job offer to the applicant. After a conditional job offer has been submitted, an employer can conduct a criminal history background check with appropriate limitations on arrests that did not result in conviction as well as misdemeanors that have been dismissed or expunged. Upon learning of an applicant’s potential criminal history, an employer must be committed to properly weighing the severity and time elapsed in relation to the potential impact on the conditional offer.
2. Obtain appropriate consent documentation - Before conducting a credit check on an applicant, employers must gain valid consent and authorization from the applicant via a clear, concise, individual document that specifically asks permission for the employer to collect appropriate information. This document should not include any other releases of liability or certification not related to the inquiry for the background check.
3. Tailor your screening - Make sure that your policies and measures conducting background checks vary between positions depending on the security or flight risk that each position presents. For example, a role that constantly handles sensitive information or requires extensive financial responsibility should allocate more toward a credit check in their screening process than an entry-level customer service position.
4. Implement proper Adverse Action Protocol - When a screening service presents information that is significant enough to change the employer’s decision on the offer, either credit or criminal history related, the employer must notify the applicant within three days of receiving the notice with a Pre-Adverse Action. This notification should include contact information for the third-party screening agency as well as information about the applicant’s right to resubmit for screening or dispute the results. Upon receipt of this initial adverse action notice, the applicant has 5 business days to dispute the results before an employer can send the Adverse Action notice finalizing their decision.
5. Be thorough - Although it is important to properly allocate resources depending upon the status of the position, employers should always strive to maintain the security of their business and other employees through effective screening processes. Settling for the bare minimum in terms of background check requirements is an undue risk when there are many options and services available to protect against potentially dangerous or untrustworthy applicants gaining access to all aspects of an organization.
