EEOC & FCRA COMPLIANCE & BACKGROUND CHECKS/SCREENING
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EEOC & FCRA COMPLIANCE & BACKGROUND CHECKS/SCREENING
In 2012, the Equal Employment Opportunity Commission (the federal agency responsible for enforcing anti-discrimination laws in employment) issued guidelines for the proper use of background checks. Proper use in this context means that there must be some connection between a potential candidate's criminal background and the job to which they have applied. If you're hiring for a position that will handle money frequently, it makes sense to consider whether or not an individual has a history of fraud or embezzlement. Other backgrounds might not be related to the position.
A simple three-part test dubbed the "nature/time/nature" test can help determine when there might be a legal problem if a job applicant has been denied employment due to their criminal history. It consists of a balancing of the nature of the applicant's offense, the time that has passed since that offense, and the nature of the job they have applied for. If an employer denies a Second Chance applicant a job based based on their criminal history, it will need to do so in a way that makes sense given these three factors.
In addition, the Fair Credit Reporting Act (FCRA) governs employers that use consumer reports such as criminal history and other public record information for employment purposes. FCRA requires employers to obtain consent from an applicant prior to obtaining the background check. FCRA also requires an employer to notify an applicant prior to and after taking an adverse action (decision not to hire) when that decision is based on the background check.
CORBETT GORDON: In 2012, the EEOC, the Equal Employment Opportunity Commission, the federal agency that enforces anti-discrimination laws issued to setup guidelines for use of criminal background checks, interestingly they targeted and protected Hispanic and African American males as those who have been profiled more often, arrested more often and therefore convicted more often, and the premises that there could be discrimination against these protected groups if background checks are appropriately used now, and what do they mean by appropriate use? They mean you look first at the job, what does the job require? If the job is handling money then it makes some sense to ask if somebody has had problems with handling money in the past or been incarcerated for embezzlement for instance, but if the job has nothing to do with something like handling money then getting into that are making an assumption because the person across the table looks a certain way that that person might have a record of some kind, is not appropriate so it starts with the job and then it goes up to, are you tailoring your interview and your application in a way that fits the position of person is applying for or are you just scatter shatting, and eliminating a lot of people who might be very good employees, but who might not be able to pass a background check.
PAMELA MACK: They actually choose for variety of reasons, one thing I know is it has been mentioned before, a lot of has do with negligent hiring that are worried about having a negligent hiring lawsuit against them but I think also they’re doing everything they can to protect their organization and to give them a feeling of protecting their employees that they have and they feel that knowing this information upfront might give them that sense of protection, and the ability to control the environment a little better, they wanna know the person they’re hiring, they wanna feel like they have a better understanding, and in interview process you can only learn so much I think that they feel, and we feel as well, and we know background checks are in place that we’re getting a more honest impression of them maybe information that they didn’t want to share with us and that we should know and so it’s just an idea of getting to know, have better idea that we’re hiring and feeling that you’re not bringing someone in your culture, in your business that might not be a good match, because of their history whether or not that means they’re gonna have those problems are your office of course, nobody knows but I think it gives some point of, somewhat of a sense of security.
Information from a background check comes from a lot of different sources, I know that most of employers that I spoken to still believe there’s a big brother system that we put the information in and put in the name and social security number and boom, we’ll get a report that has everything about the applicant that you ever wanna know and that’s completely not true so there is information from all sorts of different sources and we check several sources, some background screening companies will just run a database, there’s a ton of information on a database, it’s not all accurate, it’s not all up to date, really identifiers for that information are name and date of birth, so you have a lot of information if you have a common name that might not relate to you and even still the truth is, there a people involved in every part of the process of a background check at the courthouse, at the background screening company there’s always gonna be people involved, so there’s always a possibility that information could be inaccurate and the fair credit reporting act the FCRA, has implemented guidelines and regulations actually that you need to send a letter, called the adverse action letter, the copy of the report to your applicant if you find others information and that gives them the opportunity to need to dispute that information because everyone knows it’s the possibility that the information is not accurate.
Criminal background checks are not always accurate or complete and unless you go to the courthouse, unless you’re using a competent screening company, that has checked with the courthouse, things may pop up that are no longer relevant and arrest record is not a conviction, a something may be expange but may show up in some other form of background unless you go check in the court you don’t know that.
So the background screening process can involve a lot of different types of searches, most employers are first looking for felonies or misdemeanors and that’s kind of your general background check but you can also tailor it for example by running a sex offender registry if the employee is gonna be working with vulnerable populations like children or the elderly, you can run motor vehicle reports if the employees is going to be driving for the company, there might be financial information you want to run if they are working at the finances of the company, but you probably shouldn’t be looking for any of that information that those things do not apply to the job, so the idea is to tailor the search to look for the information that you need to make sure that they are a good match for that job and not to get a bunch of information that’s not relevant.
Fair Credit Reporting Act regulates anything that comes from a background screening bandora that sort of business, to an employer and it requires all sorts of things but the main three things that most employers are concerned about for background screening, is that they have a permissible purpose which is usually employment, doing the screening that they have assigned disclosure form and authorization prior to doing the screening and that they will send an adverse action letter and a copy of the report to the applicant if there is any information that is found on the report that might prevent them from hiring.
Nature time nature is the gravity and the nature of the offense that the person has committed the applicant has committed the time since that offense and then the nature of the job for which the person is applying, and if those don’t line up in a way that makes sense then you may have a problem if there’s been an infraction for instance a conviction of some kind that doesn’t have any relevance to the job then you’re going to be out of compliance because you’re not matching up the job with the requirements of the job in the person’s own history and time is important, because the longer the time between the time of person committed the crime and the time of the person in front of you looking for a job in particularly the amount of time since the person has been released from incarceration and is now applying for the job, if that person has not reoffended it’s much less likely that, that person would be reoffend.
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