Candidate screening: Background check best practices

April 11th, 2024

Talk about background screening has increased recently as key regulatory changes take the spotlight. Despite the shifting landscape, there are fundamental insights that contingent workforce program managers must understand to navigate the process effectively. In addition to keeping apprised of evolving regulation at the local, state and federal levels, program managers should look ahead and make sure they are prepared for the role that technology will play in background screening going forward.

Here are some of these fundamental considerations.

Legal Developments

When it comes to legislative best practices, compliance and talent acquisition professionals should continuously monitor legislation at the federal, state and local levels.

Expect regular updates on new laws and regulatory best practices as well as compliance-driven solutions, says Angela Preston, associate general counsel, corporate ethics and compliance at Sterling, a background screening and identity verification provider.

“We recommend that employers leverage legal counsel to review policies and practices,” Preston says.

An understanding of the law and the latest developments is also crucial. For instance, contingent workforce program managers should familiarize themselves with “clean slate” laws, which require the removal of specific types of criminal records from the public court record. The laws permit candidates to make a fresh start by allowing the sealing or expungement of certain types of records. This means that, where these laws are applicable, employers may not have access to certain types of criminal records that they formerly had access to during background checks.

“If you are hiring in a location where certain records are no longer available, you may want to consider the requirements of the job and tailor your hiring matrix to account for the impact of clean slate laws,” Preston adds.

One of the latest developments in the legal screening landscape — and one of the biggest challenges — is the proliferation of laws either banning background checks, pushing them back farther into the process or heavily restricting them, says Eric Rumbaugh, a partner at law firm Michael Best & Friedrich LLP. He adds that when it comes to best practices, many are administrative steps you could take to comply with statutes such as the Fair Credit Reporting Act.

Meanwhile, earlier this year in California, the Superior Court of Los Angeles County ruled it will no longer include the month and year of birth as criteria in its criminal name search engines — a move that could have wide-reaching implications. According to Sterling’s Preston, this creates a barrier to completing background checks and has adversely impacted candidates by slowing down the hiring process. “Access to identifiers in the public record is a key component of background screening to support a safe workplace and protect the public,” Preston says.

Understanding Requirements

Having a grasp on requirements means knowing the legal requirements and risks when conducting background checks within your own industry. Rumbaugh advises that you understand the claims history for your business. Speak to a broker periodically about the claims history for your industry.

“That’s a key element, and that’s something that you should do periodically,” he says.

Using AI

While there’s been much talk about AI, it’s important to separate the hype from reality when it comes to background screening.

Ivneet Kaur, executive VP and chief information technology officer at Sterling, says it is necessary to have a “well-defined strategy and holistic approach to bringing/advancing AI-based solutions in your organization by engaging a cross-sectional group of stakeholders — including HR, compliance, legal and privacy — and having a continuous governance approach for AI-based solutions from idea to operationalization.”

The use of AI carries compliance considerations as well. Businesses should be aware of guidance from agencies such as the US Equal Employment Opportunity Commission and other laws that require employers to ensure that AI does not have a bias or adverse impact on protected individuals.

In addition to keeping up to date on guidance, consider prioritizing your upfront return-on-investment, return-on-experience assessment.

Although AI in the use of background checks has the potential to reduce biases and provide data-driven results, it is still important to acknowledge the very real possibility that AI can unintentionally introduce or perpetuate biases. Rumbaugh adds that the staffing industry is behind when it comes to being aware of statistical biases based on race in the use of algorithms and AI.

“There’s no avoiding technology and innovation,” Rumbaugh added, emphasizing its efficiency.

Finding the Right Vendor

With numerous providers in the market, program managers may find it challenging to discern the full range of products and services offered by each background check provider.

A paramount consideration when selecting a background check provider is that it remains on top of technical compliance requirements, Rumbaugh notes.

Other important elements include a focus on automation and efficiencies as well as a global presence, says Meg Wilson, chief product officer at Sterling. Companies also look for compliance expertise, dedicated customer service, lower rates and continuous, useful innovations such as identity verification.

This originally appeared on SIA CWS 3.0:

Sterling is not a law firm. 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.

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