Employment Screening 101

Learn about FCRA & EEOC compliance when vetting employees

Employment screening regulations require employers to use accurate and up-to-date information when making hiring decisions. For each job position, employers must develop an HR policy for conducting pre-employment background checks.

It would therefore be helpful to know what criminal offenses relate directly to the job. This is critical to ensure that employers are not unfairly discriminating against potential candidates based on their criminal record. The information should also be used to identify potential red flags that could indicate a risk to the safety and security of the workplace.

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It’s all about fairness and accurate reporting.

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.

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. 

October 1, 2023: California new regulations add restrictions, make clarifications, and significantly change the California background check process. View more info

Effective close of business February 23, 2024, the Superior Court of Los Angeles County will no longer include the month and year of birth as criteria in its criminal name search engines. These revised search criteria apply to courthouse kiosks and the Court’s website at LACourt.org. This will greatly impact our capability of searching criminal records in Los Angeles specifically for common name combinations, even a name match of an unique name cannot be 100% verified.

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 Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces laws prohibiting workplace discrimination. To be EEOC compliant, employers must ensure that their employment practices and policies do not discriminate against employees or job applicants on the basis of race, color, national origin, sex, religion, age, disability, or genetic information. Employers must also provide reasonable accommodations to individuals with disabilities, and not retaliate against employees who assert their rights under EEOC laws.

The EEOC’s guidance on the use of criminal records in employment decisions is intended to prevent discrimination against individuals with criminal histories, who are disproportionately represented in the workforce.

The Individualized Assessment process can help ensure that employers are making fair and non-discriminatory employment decisions based on an individual’s qualifications and job-related factors, rather than their criminal history.

 This assessment is required when an employer is considering taking an adverse employment action based on an individual’s criminal history.

The Individualized Assessment involves evaluating several factors to determine whether the criminal history is relevant to the job in question, such as the nature and gravity of the offense, the time that has elapsed since the offense and completion of the sentence, and the nature of the job in question. The employer must also give the individual an opportunity to provide additional information about their criminal history or rehabilitation efforts.

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