If your company is doing its background checks in-house or using an inexperienced provider, several areas could cause trouble if done incorrectly. That's because the regulations and laws about background screening are constantly changing.
- If one of your employees hurts another one on the job, are you at risk for negligent hiring?
- Does your language in job ads and company policies about background checks comply with the Equal Employment Opportunity Commission regulations?
- Do you have the most updated applicant authorization forms?
Here's a look at the types of questions you should be asking your background check provider to make sure you are compliant.
1. Are we at risk for negligent hiring claims?
To ensure you are doing your due diligence before hiring an applicant, you should be looking at the right areas to see if they pose a risk to your company or the public.
If you're not performing adequate background checks, your company could be looking at a considerable liability risk for negligent hiring. Employers are not judged on what they know about applicants. Instead, it's what the employer should have known. So if the background checks you or your provider are performing are not thorough enough, you could be putting your company at risk.
Orange Tree performs extensive criminal background searches, including National Criminal Records Search, National Sex Offender Registry search, county and statewide searches, federal criminal record search, and more.
2. Are we using compliant applicant disclosure and authorization forms?
You must keep track of what forms you are using to ensure proper authorization for background checks and remain compliant with the Fair Credit Reporting Act.
There are several forms to be aware of in this area. Disclosure forms are different from consent forms, for example. A drug screening consent form is needed if you are doing those tests. Candidates must provide authorization to the background check. And if you are using a vendor, you must disclose that to the candidate.
3. Are we handling candidates with criminal offenses properly?
The Equal Employment Opportunity Commission has said in the past that companies should not automatically exclude applicants who have a criminal record.
Whether working on your own or with a background check provider, you should be conducting further analysis if a candidate with a criminal record comes up in your hiring process.
You'll want to review the nature of the offense and how serious it was. The time that has passed since the crime was committed is also important. Finally, does the crime have anything to do with the job? If not, the offense shouldn't necessarily be considered in the hiring decision.
4. Is our application compliant?
States and cities have passed "Ban-the-box" laws that make it illegal to have an application that includes a box for someone to check if they were convicted of a felony or other crime.
The laws were put in place to promote a different way of hiring, focusing on evaluating the candidate and if they would be a good fit for an organization rather than automatically disqualifying them because of past criminal convictions.
Thirty-six states have ban-the-box laws for public jobs, with 13 states having them for private employment. More than 150 cities have passed laws too.
5. Do we send the correct adverse action letters?
Adverse action letters continue to be a hot topic in the hiring world. Adverse action means employers will not be hiring someone because of what was found on the background check.
In some states, if candidates are disqualified from a job because of the results of a background check, employers are required to list the convictions that influenced their decision.
Orange Tree can help you properly execute the three-step process for letters that is in the FCRA. Our services include helping you customize your letters for your business policy. We can also take care of the administrative tasks and delivery of the letters and other required notices for you. Each step is annotated, so you'll see how the process was completed while also have proof if your company is ever sued.
There's a lot to think about when conducting background checks now. If your company would like to take a thorough approach, Orange Tree has more than 30 years of experience.
Schedule a free consultation to learn more about how we can help you complete compliant background checks.