Employers of all kinds face several challenges in the human resources department. Managing active employees and directing their work effectively is just one of those. More fundamentally, hiring individuals who are the right fit for the company is an ongoing issue that requires consistent investments. Adding to the complexity is the need to carefully observe background check compliance—and legislation on the subject that often changes the rules.
Understanding background check regulation is only one part of the picture. Knowing how to use these important tools in a fair manner is essential for protecting your business, both in reputation and against litigation. Violating the rules or acting unfairly could cause real harm to a business. How can you be assured that your processes are lawful? Let's explore.
Crafting a lawful policy begins with understanding the laws you'll need to obey along the way. This includes both broad federal regulation and more localized background check legislation. We have in-depth Learning Center articles on each of these topics you can use to deepen your understanding as you build your policy. In short, you should be aware of the following types of obligations:
Each of these elements requires careful research to develop an understanding you can use to craft a fully lawful policy.
With many stages to the process, it is all too easy to deviate from best practices and enter legally perilous ground. It is best to create a written policy that fully defines all aspects of your process to keep your hiring managers on the right track. Explore this quick overview of what such a background check policy should include.
Explain the purpose of using background checks in your business by answering questions such as "what is our goal?" and "why do we need to maintain a safe environment?" Define who is subject to your policy; for example, you may not always screen only new applicants. Establish when current employees may need to undergo screening and decide whether you will use ongoing monitoring services. Think of this like you would your brand's "mission statement."
Next, specify the types of background checks you will use. You should include all the different types of vetting and verification you may use—not just background checks. Each approach has its merits and can reveal important information about applicants. Most often, you'll list checks such as:
Keep this section up to date. For example, if you choose to begin screening social media or credit reports for certain positions where legally allowed, you should list them here.
Explain what you must collect from applicants, including their signed consent forms. Personal information, including full name, date of birth, address, driver's license information and other data is important for completing these checks. However, you usually do not need to collect Social Security numbers. These are not associated with criminal records.
Define how you will request information from an applicant, such as through an electronic system or in writing. Establish procedures for digitally securing that information from prying eyes. Set time limits on how long you'll keep that information.
Establish guidelines for ensuring your policies comply with local, state and federal law, including a periodic review to ensure you remain in compliance. Set boundaries for applicant communication. Explain how you will inform applicants about the process.
What is disqualifying for one business may not be for another. You cannot create a policy that issues blanket denials to all individuals with a criminal record. However, you can choose to create a "decision matrix" to use in conjunction with an individual assessment. Deciding what level of crime is disqualifying for what type of position is something only you can choose. Create a guide for making consistent adjudications across the board.
Explain how you will communicate with applicants if they fail their background check. See more on taking adverse action below.
No one should be exempt from your background check policy. Likewise, you should not single out individuals for vetting when you do not apply the same rules to others. However, you may choose to use more stringent background checks for higher-level and more sensitive positions. In general, your goal should be to be consistent. If one high-level associate must go through a rigorous background check, so too must anyone else seeking that position—now or in the future.
To do otherwise is to create a potential appearance of impropriety or favoritism. It could even lead to accusations of discrimination—even if you're following the letter of the law for background check compliance otherwise. To be as fair as possible is to be as consistent as possible; you can't cut corners or favor one applicant over another in the way that you vet candidates.
Running a background check requires gathering a range of personal information from an individual. This could include their home address, past places of residence, driver's license number, date of birth and more. All this personally identifiable information, or PII, could be used to cause harm if it falls into the wrong hands. Protecting your applicants and preventing identity theft should be an important part of your considerations, even if they don't have anything strictly to do with FCRA or EEOC compliance.
Define how long you will hold on to applicant records and create a procedure for destroying the information after a period of time, especially if you take adverse action. Use secure computer systems protected by strong passwords and, when possible, use encryption to protect applicant and employee records.
In order to maintain FCRA compliance with your background check, you must follow a specific procedure if you want to deny a job based on the results of your vetting. Skipping the following procedure can open the door to lawsuits and other enforcement action—so take care to understand this process thoroughly. In brief, here is what the FCRA says you must do:
You may then move on to other applicants.
You equip your business with a potent tool by following the steps outlined above to create a thoroughly compliant background check policy. Not only can you be sure to stay up to date on shifting background check compliance and legislation, but you can avoid legal pitfalls while still leveraging the power of thorough vetting. Placing emphasis on acting lawfully while exercising your hiring prerogative can lead to building a higher-quality workforce with lower risk.