FCRA Employment Screening

Learn about FCRA compliance when background screening employees

 

It’s all about fairness.

In order to comply with FCRA regulations when screening potential employees, a company must rely their hiring decision on accurate and updated information.

 

Men and women who had a criminal blemish in their past expect a reasonable guarantee that the information obtained by the employer is truly correct so that they are offered an opportunity to review and dispute the facts. Relying solely on criminal database results may show original prosecutor charge that at a later date may have been pleaded down, dismissed, or expunged.

 

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Step-by-step procedures an employer should follow when performing employment screening

Prior to the hiring process, you should

  • Establish an HR policy when conducting employment background checks for each job position. For example, what past criminal offenses are to be considered in relation to the job position
  • Find out whether “Ban the Box” is applicable to your geographical location. Ban the box means not asking about past criminal convictions during the initial application process, but rather after the interview and skills assessment if a job offer is to be made contingent upon results of a background check report

Processing a background check

  1. Employment application received
  2. Background check consent must be completed and signed in separate stand-alone form separate from employment application as per FCRA. Must be clear and conspicuous to their knowledge
  3. After a satisfactory interview, the job offer is extended with the contingency of passing employment background check according to your company’s HR policies for the job position being applied
  4. Background check report comes back clear, the employee is hired

If derogatory records are found

  1. You must verify that they are updated and accurate at original source – County Criminal Court or Real-Time Statewide government search
  2. Send FCRA Pre Adverse Action Letter. Wait at least five days to allow the applicant to dispute any discrepancies before taking any further action
  3. Conduct an Individualized Assessment as per EEOC, based on nature of the offense and how it relates to the job position
  4. After further review, you may hire or decline employment applicant
  5. If declined, you must mail applicant a Job Declination Adverse Action letter

Did you know? The following States observe seven-year restrictions when processing FCRA criminal searches: CA, CO, KS, ME, MD, MA, MT, NH, NM, NV, NY, TX, WA

613a Letter

While is not advisable to make an employment declination decision based solely on the results of a nationwide database search as they may not contain updated records, some employers choose to send out a 613a letter to applicant. A 613 Letter serves as a notification that derogatory information was found in a criminal database background check that could influence their ability to be hired. Normally it is used to save time and money in verifying a record at the county court. If applicant wants to dispute the criminal database information, then you must verify at original county court source. As an abundance of caution and given the fact that the FCRA has been somewhat ambiguous due to the excessive amount of FCRA litigation these days — we highly recommend going by the “strict” method of county court verification

Equal Employment Opportunity Commission (EEOC) guidelines

The EEOC has stated to further consider whether the nature of the crime committed will interfere with their job duties and that the background check data is utilized comparatively in the hiring process and does not unfairly exclude them from employment opportunities when they are otherwise competent for an employment position. Learning as much as you can about a potential employee is an important part of the hiring process for any organization. Your background screening policy may be your first and best line of defense in litigation. Neglecting to run a thorough background check could hurt you and your bottom line.

Being EEOC compliant

In regards to EEOC compliance when doing employment background checks, it is likewise essential that the potential employee does not experience that he or she is being unfairly judged or singled out because of an excessively challenging screening procedure as opposed to other candidates applying for the same job opening.

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