December 16th, 2016 | Debbie Lamb, Sterling Talent Solutions

Keep It Legal: Tips for Criminal Record Check Compliance

Man at white board

From the Hippocratic Oath to the Fair Credit Reporting Act, every industry adheres to their own rules and regulations. The background screening industry is highly regulated as it has rules which protect both prospective candidates and the background screening companies. The industry is governed by legislation on all levels of government from federal to state to local districts. The bevy of rules can be overwhelming to an employer and if a regulation isn’t followed properly, companies might have to deal with penalties. But background screening is not a nightmare some make it out to be – the key to minimizing the legal risk associated with background screening checks, especially criminal record checks, is having a well-thought out hiring policy in place that accounts for applicable legislation and guidance from Equal Employment Opportunity Commission (EEOC).

Tips for Criminal Record Check Compliance

Our recently released white paper, Keep It Legal gives five critical steps to help keep employers compliant with criminal record check rules and regulations.

  1. Employer Education – The first step in criminal record compliance is education. Employers need to be familiar with the Fair Credit Reporting Act (FCRA), EEOC guidelines, ban-the-box ordinances and state laws which may restrict the use of criminal history information until later in the hiring process, typically after the interview stage.
  2. Use a Hiring Matrix – In order to prevent any unintended bias from impacting hiring decisions, many companies have created screening policies which define the types of crimes which may disqualify candidates from certain positions. Then, these policies are put into a hiring matrix or grid to be used by HR to determine if a criminal record needs further individualized assessment. Blanket hiring polices, even in cases where candidates may not be eligible for certain positions by law, are prohibited by the EEOC.
  3. Individual Assessments – An EEOC 2012 guideline requires employers to conduct individual assessments before making hiring decisions based on criminal records. This process was introduced to address potential discriminatory situations in the hiring process. An employer is expected to inform applicants, via email, letter, on the phone, or in person, that criminal records found during a background check may disqualify them from employment. The applicant is given the opportunity to explain the circumstances of their situation and demonstrate why the exclusion should not apply to their case.
  4. Two-Step Adverse Action Process – If the employer decides to disqualify the candidate based on criminal record information (or other adverse action information revealed in the background check), they have to follow a two-step adverse action process as required by the FCRA. This involves employers notifying and providing documentation to the applicant about the negative results of their background check, challenge any discrepancies and clear the negative information which may result in a disqualification for employment.
  5. Dispute Process – Employment background screening companies have the responsibility to provide accurate and up-to-date information, and there still could be instances when a criminal record may be reported inaccurately as public records are not always error-free. The law allows the candidate the right to contact the background screening provider directly to dispute the accuracy of the findings.

Staying Compliant

Legal issues must be considered when establishing company polices for whether to hire a candidate with a criminal record. Labor law judgements are continuing to be updated on a local to federal level forcing organizations to review their employment applications, interview practices and hiring processes to make sure they are compliant with the new laws. Companies have to take action in order to comply with the regulations by talking to legal counsel and having a third party employment screening company that is up-to-date on the rules and requirements.

Learn steps to protect your business by being compliant with laws for your background screening policies in our new white paper, Keep It Legal.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.