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Employment Screening 101

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Learn about FCRA & EEOC compliance when vetting employees

To comply with employment screening regulations, employers must use accurate and updated information to make hiring decisions. In order to conduct pre-employment background checks for each job position, employers must develop an HR policy. Therefore, it would be useful to know what criminal offenses relate directly to the job position.  

It is expected that candidates will receive a reasonable assurance that the information obtained by the employer will be genuinely accurate, so they can review and dispute any derogatory findings.  

It’s all about fairness and accurate reporting.

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

The FCRA permits employers to obtain records that are older than the FCRA 7-year limit if you’re applying for a position that pays $75,000 or more. However, you must clearly state this on the applicant’s background check consent form. 

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 authorization release must be completed and signed in a 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 any database records found are updated and accurate at originating source: County criminal court or real-time state 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

What is an Adverse Action letter?

613a Letter

While it 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 an 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 the applicant wants to dispute the criminal database information, then you must verify at the 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

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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.

If an employer decides not to hire someone based on a criminal record, the final act and the process we all need to make sure we are doing is to provide an individualized assessment, part of the Equal Employment Opportunity Commission (EEOC) Guidance on the use of criminal records.

That means before denying a job opportunity due to a criminal record, the applicant is given the chance to tell you either fact about the crime or themselves that would bear upon the job, so that they are being evaluated as an individual as opposed to being a person with a criminal record.

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