This week we’re doing an analysis of the recent EEOC and FTC joint written effort to better inform employers and applicants to the rules and regulations of background screening for employment purposes.
If you need a refresher, click on this post for the basic concept of the document. Today, we’re going to tackle things from the employers’ perspective and go in-depth with what you need to do if you’re the one doing the hiring.
Since the information, when presented as a whole, can be a little intimidating we’re going to keep it simple and use a Q & A format. Below is our interpretation of the what the EEOC and FTC are trying to tell employers in 8 easy questions.
Employer: First off, is background screening illegal?
Active Screening: A background check, in of itself, is not illegal. It’s also not illegal to ask questions about a candidate’s background, either. However, all federal rules and regulations like the Fair Credit Reporting Act and discrimination laws still need to be followed. A background check can provide pertinent information about an applicant’s history like their criminal record. Would you really want to hire a school bus driver without knowing if there is a warrant out for his arrest?
Employer: So I can ask about anything?
Active Screening: Whoah, slow down, fella! Every conversation has something that’s off limits, right? Don’t even think about trying to get a candidate’s or employee’s genetic information or family medical history. If, for some reason, it’s offered up or you get it, be very, very, very (that’s three very’s) careful not to use it for a hiring decision.
These things are also off-limits: race, color, sex, religion, disability, age.
Here is a link to the EEOC Website for more information on prohibited practices.
Employer: What if the job depends on their health or ability?
Active Screening: Tell your lawyer before you do or say anything, and then figure out how to proceed.
Employer: So can I just tell the person that I’m doing a background check on them? Or do I even have to inform them?
Active Screening: You must inform an applicant and get their consent. No, it may not be a verbal agreement. You need written permission on a stand-alone form. That means you can’t put it in an employment application. This is part of something called compliance and it’s super important. Click here to understand the roles of compliance.
Employer: What if I hire someone like you guys to run my background checks? Who’s responsible for following all the rules then?
Active Screening: Both of us. We both are legally bound to comply with federal regulations like the Fair Credit Reporting Act (FCRA) and any state or city mandates. We are responsible for researching these laws and ensuring that our policies are up to date and lawful. The same goes for employers. But before we’ll even touch a background check request, we need some information from you:
- Certification: your identity, your permissible purpose (reason for check), and a promise that you will not use the information from the check for any other purposes.
- Authorization: have you told your applicant about the screening policy and gotten their written permission?
- Adverse Action: have you complied with FCRA requirements?
Employer: I’m concerned with a couple of things that a background check turned up. What should I do?
Active Screening: If you think it’s enough to keep you from hiring this person, that’s called ‘adverse action’ and there are several steps you need to take. These include:
- tell the applicant about the credit reporting agency (CRA) and the information in the report
- include the CRA’s name, address and phone number
- include a statement that the CRA had no influence on the adverse action
- give a written supplement stating that the applicant may get a copy of the report and dispute
This link gives you the full scoop on compliance: https://www.activescreening.com/compliance-checklist-compliant-organization/.
Employer: So how long do I have to keep all this background screening info? Are we talking 7 years like taxes?
Active Screening: This is up to your discretion. The FCRA does not indicate a certain amount of time to keep records. However, once you’re done with them, you need to destroy them. Invest in a good shredder! But wait! if there is charge of discrimination filed at some point, you need to hold on to all of your screening documents until the case is finished.
Employer: I still have questions. Where else can I turn for more information?
Active Screening: We have you covered. Check out our awesome resource page with all sorts of downloadable materials that you can read on your own time. Or request a copy of our 2014 Applicant Screening Guide. And, if you haven’t already done so, subscribe to our RSS Feed. We hit you up everyday with new information on the background screening industry.