Employment screening is common in today’s job market. According to the Society for Human Resource Management, 87 percent of employers use background check services to obtain information on job candidates’ criminal histories—and in some cases, credit histories—in an effort to identify applicants who might pose a physical or financial risk to their company or its employees. Unfortunately, even small mistakes made during employment background checks can land these employers in hot water with state and federal enforcement agencies including the EEOC.
Before scheduling a background check on your next job candidate, review your pre-employment screening policy and process. Look for—and correct—the following mistakes and you’ll eliminate the potential of candidate or EEOC-generated grief.
1. Using old versions of federally required documents – In early 2013, the government revised the Fair Credit Reporting Act right’s summary employers are required to give job candidates before initiating pre-employment screening. Titled “A Summary of Your Rights Under the Fair Credit Reporting Act,” the newest version of the document references the Consumer Financial Protection Bureau rather than the Federal Trade Commission. It may not seem like a big deal, but employers have been subjected to multi-million dollar lawsuits due to the use of outdated documents.
2. Including a release of liability clause on your pre-employment screening consent form – The Fair Credit Reporting Act requires background screening disclosure documents to “stand alone.” This means they must disclose the purpose of the screening and obtain authorization to screen—and nothing else. They may not contain a clause that releases the employer from any liability associated with the background check.
3. Failing to provide pre-adverse action letters and post-adverse action letters – If the information you obtain on a candidate from a third-party background check vendor leads you to disqualify him or her from consideration for a position with your company, you must provide both a pre-adverse action letter and a post-adverse action letter. These documents are required under the Fair Credit Reporting Act, but employers often forget to use them—and lawsuits force them to pay millions as a result.
4. Excluding all convicts and felons – The EEOC issued new guidelines in 2012 for the use of information obtained by criminal background check services. In part, these guidelines encourage employers to consider factors such as type of crime, arrest or conviction, and how long ago it occurred before rejecting an applicant. Several cities and states have taken this measure even further, prohibiting employers from including questions about criminal history on job applications.