Background checks have always been an integral part of the onboarding process, they help employers gain a better understanding of who they are hiring. Over the years the employment regulations have become more complex. Employers have a responsibility to create a sound onboarding process that they utilize with each potential new hire. The following are some best practice recommendations that we suggest in an effort to strengthen your current process.
Once you have established a relationship with a reputable Consumer Reporting Agency (CRA) you must ensure that each potential new hire signs a consent form authorizing the background check. The potential new hire must also receive a Summary of Rights as a requirement of the Fair Credit Reporting Act (FCRA). We recommend that you have the (CRA) run a local, state and federal records check. According to recent guidance issued by the EEOC you cannot use an applicant’s arrest records when considering employment. For example, if an applicant has been arrested but never convicted you should not take the arrests into consideration when deciding whether or not to hire that individual.
After you have received the results of the background check the decision process can begin. The Equal Employment Opportunity Commission asks that employers consider 3 factors when deciding whether or not to hire an applicant with a criminal background.
The three factors are:
- The nature or gravity of the offense;
- The time that has passed since the offense occurred; and
- The nature of the job held or sought.
For example, if you have an applicant who has a criminal conviction on their record, you must consider the nature of the offense. Was it violent? The second factor revolves around the length of time that has passed since the conviction. Did it happen within the last 6 months or did it happen 5 years ago? If it has been several years, the EEOC would take the position that the conviction should not be considered when making an employment decision. The final step requires that an employer analyze the position the applicant is applying for and the conviction Does this conviction have a direct impact on the job they would be performing for your Company? Linking the criminal conduct to the essential functions of the position can help an employer prove that a decision not to hire was made out of business necessity. A hiring decision should be made after considering the above factors.
The question we get most often when a potential new hire has a record of some sort is “what do I do next?” When the answer is not clear cut, we recommend contacting a professional who is well-versed in the employment regulations. Each situation you face will differ and it is important to seek the advice of a professional. At Seay Management, we are always glad to discuss your concerns and provide guidance on appropriate steps to take with your applicants and new hires.
If you chose not to hire an applicant based on their criminal background we recommend that you follow the Adverse Action steps. By following these steps you are complying with the regulations and limiting the potential for future liability.
Adverse Action is a two part process. The first part is the preliminary notice of adverse action. This letter is sent to the applicant stating that a preliminary decision has been made to not employ them and should they choose to dispute this information they can contact XYZ Consumer Reporting Agency. A copy of the report should be enclosed in addition to a summary of their rights. The applicant has 3-5 days to dispute the information that was furnished on the report. We recommend that the letter be sent certified mail. After the 3-5 day window has passed for the dispute and you have not heard from the applicant you can then move forward with part two. The second notice you will send is the Notice of Adverse Action. This letter is similar to the first stating that a decision has been made to not employ you based on the results of the background check. This should also be sent certified mail to ensure proper delivery. Following these procedures keeps your Company in compliance with the regulations.
Ban the Box
In the past few years there has been legislation to “ban the box” on employment applications. This refers to questions on an application form requesting information on any criminal history. The question is most often asked in the following way: “Have you ever been convicted of a crime, plead no contest or had adjudication withheld?” The logic behind the “ban the box” movement is that many applicants are not hired if they check the box acknowledging that they have been convicted of a crime. The conviction could have been 20 years ago but they still have to check the box; therefore making it hard to secure employment.
In recent months many states have adopted a law to remove this question from the application. The ordinance can be adopted by individual cities. San Francisco, Chicago, Baltimore, Newark, New York City, Portland, Philadelphia, and Seattle have all adopted this ordinance. What does this all mean for employers? If you operate a business in one of these cities you must comply with the regulation and update your application. If you are in a city or state that does not have this ordinance you can choose to keep it on your application. However you cannot use the question as a screening technique for applicants.
If you have a question regarding background checks or any other human resources issue please call the Seay Team.