|
|
 |
Help Center - Background Screenings
Check out our background screening and verification service offerings by Clicking Here!
Also check out a related user Q&A below:
Question:
As an employer if we run a background report and it comes back with a record for one of a variety of reasons such as drugs, theft etc.... are we able to use that information and decline to hire someone? Should a background check be completed (PRIOR) to actually hiring someone or is it ok to bring them on board while the background is being performed? I think the general rule of thumb is to send an offer letter stating that the hire is contingent on the background.
Response:
Employers have the right to conduct criminal background checks on current or prospective employees. If, however, the employer uses an outside third party to conduct a criminal background and/or reference check, the federal Fair Credit Reporting Act (FCRA) applies (and in some states there are similar state laws). Under the federal law, the employer must make specific disclosures to an applicant/employee about the background check and obtain specific authorization from him or her before conducting it. As well, if the employer seeks to take adverse action on the basis of the results (including failing or refusing to hire that person or terminating employment), the FCRA requires the employer to provide the individual with a copy of the results, information about the credit reporting agency that was used, and a summary of their rights under the law(s). Specifically, the FCRA requires the employer to send a "pre-adverse action letter" to the individual before it takes the adverse action. The pre-adverse action disclosure must include a copy of the individual's consumer report (i.e., the background check result) and a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act." This is available at http://www.gpo.gov/fdsys/pkg/FR-2012-11-14/pdf/2012-27581.pdf (scroll down to page 67748) (please note that this form was effective as of January 1, 2013). After an employer takes an adverse action, the employer must give the individual an additional notice that the action has been taken. This adverse action notice include: (a) the name, address and phone number of the CRA that supplied the report; (b) a statement that the CRA who supplied the report did not make the decision to take the adverse action and cannot give specific reasons for it; and (c) a notice of the individual's right to dispute the accuracy or completeness of any information the agency furnished, and his or her right to an additional free consumer report from the agency directly upon request within 60 days. You can find additional information on the FCRA and your obligations under the Act at the Federal Trade Commission's website: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre36.shtm . Most consumer reporting agencies have the appropriate consent and disclosure forms, which must be separate documents, to provide to their clients/employers. Even if the employer does not use the services of a third party to conduct the background checks, it should still obtain consent from applicants and employees as a best practice.
The employer has discretion to determine when in the hiring process it will conduct background checks, but it should ensure that all candidates, or at least all candidates for the same position, are subject to the background check to avoid discrimination claims, and the employer should undertake the check at the same point in the hiring process to ensure consistency. Some employers choose to conduct background checks prior to interviewing, others after, and some even after an offer is made or employment begins. If properly ascertained, we are not aware of any law which expressly prohibits an employer from rescinding a job offer or terminating employment based on the results of a background check, again if no contract or policy otherwise precludes it. That said, in some cases, termination or rescission of a job offer can still create liability for the employer. Much depends on the nature of the offer, when and how it was accepted, and whether the offeree had taken measures in preparation for employment with your company (for example, did he or she turn down other work in reliance of the offer?). If, however, a candidate is told that a job offer with your company is contingent upon the results of a background check, as you propose, the employer is in a better position to support rescinding the offer if the background check reveals and supports legitimate, non-discriminatory reasons not to employ the individual. In rescinding an offer or terminating employment, you should be prepared to be candid as to the reasons (which we trust must be legitimate, non-discriminatory, business reasons, as explained below) for the change so that the individual does not mischaracterize the rescission of the offer as based on discriminatory reasons. Note as well that if the employer improperly obtained a background check (i.e., did not have proper authorization, for example), using the results to take adverse action can have adverse consequences for the employer.
As alluded to above, the Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 with respect to criminal background checks of potential employees and it comports with the EEOC's prior position relative to discouraging blanket exclusions of individuals who have been convicted of crimes or otherwise have criminal histories. Rather, the EEOC encourages the use of individualized assessments of whether an employer's criminal conduct exclusion is job related and consistent with business necessity. The EEOC's guidance at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm addresses this issue more specifically and we encourage you to review it. Note that while taking adverse action against a candidate on the basis of a conviction record that is reasonably related to the position held may be permissible (see http://www.eeoc.gov/policy/docs/convict1.html ), using arrest records is generally not recommended. The EEOC takes the position that because certain minorities are arrested with greater frequency than non-minorities, using arrest records as a basis for disqualification from employment can visit a disproportionate impact upon certain protected classes, and thus is ill advised in most situations. In other words, use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, and such records alone cannot be used to routinely exclude persons from employment.
Ultimately, we do not recommend a blanket policy that summarily disqualifies any candidate with a criminal history. Rather, the better approach is to analyze each situation on a case by case basis and determine whether the criminal conviction reasonably relates to the position had or sought and legitimately impacts the employment or any hiring decisions. This is consistent with the EEOC's guidance. For additional information on the use of conviction records in making employment decisions, please see http://www.eeoc.gov/eeoc/newsroom/release/4-25-12.cfm . Should adverse action be taken, note the requirements the FCRA imposes on employers in notifying affected candidates/employees of this outcome (see first link cited in first paragraph).
|
| |
| |
| |
| |
| |
|
|
|
