In recent years, courts have seen a significant increase in litigation related to employment background screening. Employees and job candidates are filing class-action lawsuits against organizations for violations pertaining to state and federal consumer reporting laws and required screening procedures, and firms are paying out millions in settlements.
Organizations can make strides toward protecting themselves by reviewing their background screening and hiring programs. Here are four strong areas to examine — and review with your legal counsel — to help reduce risk during the hiring process:
#1: Know — and Follow — FTC & EEOC Guidance Factors/Requirements
Both the Equal Employment Opportunity Commission (EEOC)and the Federal Trade Commission (FTC) have focused more on employment screening to make sure organizations are fair and just in their hiring practices. The EEOC updated its guidance factors in April 2012 to focus on how organizations use criminal records and the impacts on Title VII of the Civil Rights Act of 1964, prohibiting discrimination based on race, color, religion, sex, or national origin of a candidate. Additionally, the FTC and EEOC produced materials to educate employers and potential employees on proper background screening processes. Employers should be familiar with this information, as these processes will help to reduce the risk of discrimination.
#2: Give Candidates the Proper Disclosure & Authorization Forms
Much of the litigation has been due to hiring organizations failing to give candidates disclosure and authorization forms that include the correct language or contain extraneous information that’s in violation of federal law. Employers should always have job candidates sign a proper authorization form that the employer keeps on file before conducting a background check on a candidate. Additionally, the background screening disclosure and authorization should be its own document and never merged with the job application form. Of course, always check with your legal counsel to be sure your employee background screening processes and procedures are sound.
#3: Follow the Adverse Action Process Properly
Under the Adverse Action Process, candidates have the right to dispute reported information for any inaccuracies if the results of the background screening influence a potential employer’s decision about whether or not to hire them. Many organizations have faced litigation for not adhering to this rule. Be sure to work with your company’s legal counsel and background screening firm to confirm that you are following the proper procedures and that employees, including new hires, know, understand, and follow the required pre and final Adverse Action process.
#4: Partner with an Accredited Background Screening Firm
While there are hundreds of background screening firms, only a handful have taken the time and care to become accredited with the National Association of Professional Background Screeners (NAPBS). This accreditation certifies that the background screening firm has been audited for proper procedures, securely protects private information, and understands both state and federal requirements. Always check for this accreditation, since it is one of the only recognized certifications in the employment screening industry.
Always Work with Your Legal Counsel
While the above tips are sound advice, it is always recommended to work with your legal counsel. They will be able to verify the laws and regulations pertaining to employment screening, both federally and in your state(s). Work with them to periodically review your hiring procedures so that your organization reduces its risk.
Want to learn more about reducing your risk in the hiring process? Join Alan for his webinar, Background Check Compliance Essentials: A Critical Tool for Reducing Risk in Hiring!