Employment Background Check Blog
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While the benefits of background screening are usually clear to employers, the practice has been considered by some job seekers, particularly those with less-than-perfect histories, as a barrier to gainful employment, especially in an economy with strong unemployment rates.

This has led to what seems to be an increase in litigation surrounding employment background checks, which has perhaps, in turn, resulted in enhanced scrutiny from legislative and regulatory bodies, like the U.S. Equal Employment Opportunity Commission (EEOC).

As a result, many employers are re-evaluating their background screening programs, policies, and processes and reconsidering historically broad approaches that were “one-size-fits-all”, regardless of the job classification.

To help guide this analysis, there are three critical questions you can ask to better ensure your hiring and background screening practices are appropriately tailored, based in sound reasoning, and able to survive claims of discrimination from the EEOC, individual litigants, and potential class action claims:

  1.  Is all available information equally relevant in assessing a candidate?
    Background checks come in all shapes and sizes. Some can encompass a very in-depth search, and others could be as simple as reviewing an applicant’s driving history. Regardless of the type of background check you choose, it is important to ask yourself, “What are we going to do with the results?”.

    As you’re answering this, remember to have a strategic reasoning for why you chose to use your specific method of background check. This is especially pressing with the EEOC’s announced suspicions of organizations over-emphasizing the value of criminal records information acquired during the employment screening process.

  2. When is it appropriate to order criminal record or credit checks?
    The EEOC suggests that criminal records and credit checks may not be appropriate for all positions within an organization. In order to make this assessment of which position, and what types of checks to use, consider the following:

    • Nature of job duties
    • Environment where work will be performed
    • Level of exposure to certain types of customers that makes it important to know and be able to evaluate candidate’s criminal history or current financial status
  3. How should you use the results of a background check to make a hiring decision?
    Historically, organizations were advised to use consistent criteria when taking adverse action against (i.e., not hiring) an applicant, with the thinking that doing so could help them avoid potential claims from a critical litmus test of whether discrimination exists within the workplace.

    The EEOC’s new guidelines, however, caution against fixed and generalized rules for background screening applicants, instead focusing on a more tailored hiring process focused on each job specifically. To avoid these claims, organizations could benefit from partnering with a reputable background screening company, one that could help them make tailored hiring assessments a reality.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization's compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.

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