February 14th, 2018 | Debbie Lamb, Sterling Talent Solutions

Five Critical Steps of Criminal Record Check Compliance

Each organization is unique and requires unique solutions for the hiring process to allow companies to hire with confidence. There are many types of background screening checks from criminal record checks to education and employment verifications to social media screening. Each type of check has specific practical considerations and compliance matters that must be followed. While criminal record searches are the most utilized background screening checks, there are concerns that companies need to take into consideration when making hiring decisions based on the results of these checks.

Background screening is important because it protects a company’s property, assets, reputation, brand and ultimately its biggest asset, the people. The Sterling’ 2016 Background Screening Trends and Best Practices Report found that 89% of survey respondents conduct employment background checks. The top three reasons employers conduct employment background checks are:

• Protect clients and customers
• Enhance workplace safety
• Identify the best candidates

When determining whether or not to hire a candidate based on a criminal conviction, employers should have a policy and process in place to remain consistent and fairly evaluate all candidates. Criminal record checks can be an essential step to hiring with confidence, but not all criminal record checks are created equal. Sterling is hosting a webinar entitled, “How to Choose the Right Criminal Record Check for Your Organization” at 2 pm on Thursday, February 22^nd that will give attendees a better understanding of the differences between the various types of criminal record checks available and what to consider when identifying an appropriate combination for an organization’s background screening program.

Best Practices Criminal Record Check Compliance

Background screening is an essential part of making a quality hiring decision. But just because a candidate has a conviction doesn’t mean they should be disqualified from the job. Having a documented process and policy in place to make decisions about criminal record disqualifications will help organizations remain consistent, fair and compliant as they evaluate prospective employees. Our recently released white paper, Five Critical Steps to Criminal Record Check Compliance gives five critical compliance steps to help employers “keep it legal” when conducting criminal record checks.

1. Employer Education – The first step in criminal record check compliance is education. Employers need to be familiar with the Fair Credit Reporting Act (FCRA), federal anti-discrimination laws and state and local ban-the-box ordinances which may restrict the use of criminal history information until later in the hiring process, typically after the interview stage. The EEOC urges HR professionals and hiring managers to evaluate a variety of factors before making a hiring determination based on criminal history, including the nature of the offense, the severity of the offense, the time that has passed since the offense, and how that conviction relates to the job.
2. Use a Hiring Matrix – To implement consistent hiring practices and 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. Regardless of how a hiring or decision matrix is designed, it can serve as a set of job-specific guidelines to be applied consistently and creates a clear standard against which every candidate is reviewed. Blanket hiring policies, even in cases where candidates may not be eligible for certain positions by law, are prohibited by the EEOC.
3. 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.
4. Individual Assessments – An EEOC 2012 guidance on the use of criminal history 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. While the EEOC does not specify exactly how this process should take place, the employer is expected to inform candidates that a criminal record revealed during the 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. This process can take place in writing, by telephone or in person.
5. Dispute Process – Employment background screening companies have a responsibility to ensure the maximum possible accuracy of the information. It is important to remember that public records are not completely error-free. The law allows the candidate the right to contact the background screening provider directly to dispute the accuracy of the findings. The background screening company informs the employer that a dispute is pending and opens an investigation, which must be completed within 30 days. It is imperative that the employer protects the candidate’s privacy and confidentiality throughout the dispute process.

Staying Compliant

Legal issues must be considered when establishing company policies for whether to hire a candidate with a criminal record. Labor law judgments 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 should speak with their legal counsel and work with a third-party employment screening partner that focuses on Compliance.

Criminal record checks are a vital step in making intelligent and informed hiring decisions. The key to minimizing the legal risk associated with criminal record checks is to have a well-thought-out hiring policy in place that accounts for applicable legislation, guidance from the Equal Employment Opportunity Commission (EEOC) and the overall candidate experience. Register today for the “How to Choose the Right Criminal Record Check for Your Organization” webinar! Learn steps to protect your business by being compliant with laws for your background screening policies in our new white paper, Five Critical Steps to Criminal Record Check Compliance.

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.