Three Background Check Best Practices for 2015

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by Robert Yonowitz, Esq. and Bethanie Barnes, Esq, Fisher & Phillips LLP.

If 2013 and 2014 serve as any indicator of what is to come, we expect that employers should anticipate the passage of more employment background laws in the 2015 legislative season.

Within the last two years, there has been a notable increase in the number of states limiting the timing and scope of an employer’s inquiry into an applicant’s credit and criminal background.

Most decision-makers want information about a candidate’s criminal history and credit worthiness before making a hiring decision.

Not only is this information helpful in assessing workplace risks and liability, but it may also assist employers in identifying applicants who have a history of good decision-making or may be a future workplace hazard.

Despite the increase in regulatory restrictions, employers should not have to choose between a thorough screening process and legal compliance.

Instead, based on our experience employers should shift from “one-size-fits-all” background check procedures, to utilizing sound procedures that evaluate the type of procedures best suited for the job position.

Validating that your organization’s screening practices are appropriately tailored should consider the following best practices:

  1. Identifying Legitimate Business Reasons Supporting the Background Check.
    Employers should assess the duties of a position, the environment where the work is performed, and the exposure to sensitive information. Certain positions require employees to interact with vulnerable populations, or have unfettered access to non-public information of the organization or personal information regarding customers.

    Moreover, state and federal laws may prohibit certain employers from hiring individuals with criminal histories.

  2. Building Your Background Check Criteria Based on the Legitimate Business Reasons.
    After identifying the legitimate business reasons, employers should develop a written policy to serve as a guide for the individuals in your organization who are involved in the hiring process.

    At a minimum, it should identify the type of checks conducted for the identified job positions, state the scope of the background check, and address the organization’s negative adjudication process. If your organization is hiring in one of the 10 states that restrict credit checks, or in one of the 13 ban-the-box states, the hiring policy should also address the timing and scope of these pre-employment inquiries.

    For example, states like Minnesota and Illinois prevent employers from inquiring into the criminal record of an applicant until after the person is selected for an interview.

  3. Staying Consistent.
    The importance of consistency in an organization’s background check procedures cannot be overstated. The type of background check identified for a job position must be applied uniformly to all applicants.

    Establishing a policy and procedure to make sure each applicant for a position receives the same background check and having a defensible job-related justification for the relevancy and need for the information for each job position is critical to defending against future discrimination claims.

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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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.