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Compliance and Background Checks: It’s All About Fairness

It’s generally accepted that best practices for safe hiring include pre-employment background screenings. Screening potential new hires prior to onboarding provides a number of significant benefits, including the following:

  • Verification of identity—the candidate is who they say they are
  • Verification of education and credentials—the applicant meets the requirements for the position
  • Verification of work history—the individual has the work experience they claim
  • Mitigation of risk—the candidate does not have any criminal history that might jeopardize your business or its reputation

While the benefits are significant, it’s important to recognize that the background check process is not without pitfalls for applicants. The following are very real concerns for job candidates:

  • Discrimination. Background screenings often uncover facts about a person’s past that might result in unjust treatment. In addition, background checks applied inconsistently are potentially discriminatory.
  • Errors. Background checks are complicated and the underlying systems are incomplete and imperfect.

The laws and regulations surrounding background checks are intended to balance the benefits to employers with the risks to individuals and create a fair process where both sides feel protected.

Equal Employment Opportunity Commission – EEOC

EEOC requirements for background checks protect against discrimination. In order to comply, employers must do the following:

  • Be consistent. Once a background check policy is defined, it must be applied consistently throughout the organization. Employers can’t pick and choose which candidates to pre-screen.
  • Avoid box checking. In the past, many job applications asked candidates to check boxes as answers to various questions including past criminal convictions. These yes/no questions unfairly eliminate many candidates from consideration.
  • Focus on job impact. Employers are encouraged to consider background check policies in light of job impact. For example, if a candidate’s criminal history will not have a disparate impact on the position, it should not be used as a disqualification.

Fair Credit Reporting Act – FCRA

Errors are the focus of the FCRA. FCRA compliant background checks are conducted in a manner designed to minimize errors while also providing ample opportunities for applicants to correct errors in the event any are discovered. To that end, the following are components of FCRA compliance:

  • Accreditation. Any third-party provider of background check information for use in pre-employment screening must be an accredited Consumer Reporting Agency. This certification means the agency adheres to the highest standards for accuracy and privacy.
  • Notification.
    • Prior to background check: Candidates must be clearly notified prior to a background check request and are required to give their written consent. They must also receive a copy of their rights under the FCRA.
    • Adverse action: If the employer decides to take an adverse action (rescind the job offer) based on the report, the applicant must be notified of the intent to act and be given ample time to identify and correct errors.

Fair for Everyone

When done in compliance with EEOC and FCRA guidelines, pre-employment background checks result in safe hires and fair practices.

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