A responsible employer may be conducting routine background
checks prior to hiring. This is a
standard practice in business, making sure you know what you are getting when
hiring an employee. But some types of
actions that an employer can take in conducting a background check may cause
more headaches if not done properly.
Here are some things to keep in mind.
The Fair Credit
Reporting Act
If you use any third party to conduct a criminal or other
background check, you must comply with the Fair Credit Reporting Act. Amazon and Staffing Management found this out
the hard way when they were sued in mid-2015 in a class action lawsuit seeking
damages for all applicants rejected based on a criminal background check. While the suit has not yet been certified or
resolved, the damages could be astronomical.
What did Amazon allegedly do wrong?
They hired Staffing Management to conduct criminal background checks,
and when a cocaine possession conviction came up on the plaintiff’s record,
Amazon did not hire him. But they also
did not provide him with notice about conducting the check, giving him a chance
to dispute the report, as required by the federal Fair Credit Reporting
Act. FCRA requires employers who are
using a third party to conduct background checks to get an applicant’s approval
prior to conducting a background check, inform applicants that the information
gathered might be used to make employment decisions, provide applicants with a
summary of their rights, and provide them with any negative report prior to
making the non-hiring decision. This
failure to follow FCRA may indeed cost Amazon, and many other companies, a lot
of money.
Anti-Discrimination
Laws
The EEOC also has guidelines for background checks, stemming
from a long time mistrust of such checks, especially criminal background
checks, as potentially be used to screen out applicants based on race or other
protected classes. Consequently, the
EEOC requires that:
·
The same standard be used for all applicants
regardless of protected class,
·
Employers avoid criteria for exclusion that
could have a statistically higher impact on persons of a particular class,
·
Employers should be prepared to make exceptions
if issues revealed during a background check were the result of a disability.
·
The illustrated need for, and the use of,
criminal background checks, should be based on criteria that are job related
and consistent with business necessity.
The EEOC also strongly recommends that employers use these
criteria in screening for criminal history: 1. Look at the nature and gravity
of the offense. 2. Look at the time that has passed since the offense. 3. Look at
the nature of the job sought. 4. Conduct an individualized assessment while
using similar standards for all applicants.
This is an area where the EEOC is litigating several cases, and
states and localities are beginning “ban-the-box” efforts to forbid asking
about criminal background, so it is wise for employers to pay close attention
to this area.
Genetic Information
The Genetic Information Nondiscrimination Act (GINA) forbids
employers from gathering or using genetic information to make employment
decisions.
Medical Testing
Pre-employment medical inquiries are specifically prohibited
by the ADA and EEOC enforcement
guidances until after a conditional offer of employment is made. Then, if
medical information is received, it cannot be used to screen applicants with
disabilities.
Social Media Searches
Privacy laws are a concern when conducting research on
social media, so only publicly available information should be searched, and
used carefully.
What should employers
do?
Develop specific, job-related criteria for what types of
criminal convictions will exclude individuals from employment.
If you use a third party to conduct background checks, make
sure you are following all of the FCRA requirements.
Keep all information gathered confidential.
Train all supervisors on what kinds of things can be asked
or explored in the application process.
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