Establish and Follow a Background Screening Policy

May 27th, 2015 | Sterling

In the event that a job applicant wants to legally challenge your background screening process or decision-making… are you properly prepared to defend your screening program? The answer to that question is likely the same as the answer to this question:

Do you have a background screening policy?

Your background screening policy may be your first and best line of defense in litigation. As we know in other personnel related matters, it’s important to have, and follow, policies and procedures that promote consistency and compliance in the workplace. Documenting your company’s processes for requesting, receiving and evaluating background checks will greatly improve your chances of successfully defending your program.

Among the items to consider in your policy:

  • The purpose and scope of your program.
    • Who is the policy designed to protect?
      • Employees
      • Company assets
      • Company values
    • Who does the policy cover?
      • Document what positions in your company require background checks.
  • The organizational responsibility and authority within the background screening program.
    • Who is authorized to request background checks?
    • Who is authorized to receive a background check result?
    • Who is authorized to evaluate a background check?
  • That the background check process is only one part of the hiring process that may include other decisioning information.
  • Document the background check services that will be ordered for each job position or job classification.
  • That the company understands its obligations under the Fair Credit Reporting Act and will comply with them.
  • That every applicant undergoing a background check will be required to read the legal disclosure form.
  • That every applicant must consent to the background check prior to any request.
  • That the company will comply with all equal employment laws.
  • That the company will factor in the guidance provided by the EEOC when considering criminal conviction information in an employment decision. Known factors to be considered include:
    • The facts and circumstances surrounding the offense.
    • The number of offenses for which the individual was convicted.
    • The age of the individual at the time of conviction or release from prison.
    • Evidence that the individual has performed the same type of work, post-conviction, with the same or a different employer, without incidents of criminal conduct.
    • The length and consistence of employment history before and after the offense.
    • Any efforts of the application towards rehabilitation.
    • Employment or character references obtained regarding the individual’s fitness for the particular position.
    • Whether the individual will be bonded for the position.
  • That any adverse action taken based on a background check will be preceded by a disclosure to the applicant that will include pre-adverse notice, a copy of the background check and the rights afforded to the applicant under federal and state law.
  • That any information received by the company after the pre-adverse action notice has been delivered will be considered prior to any final adverse action.
  • Document that in the event of a dispute, no final employment decision will be made until the dispute process has been completed.
  • Document that your company will retain all documentation related to the background check for a minimum of five years (the statute of limitations established under the FACT Act).

Should your company be in the position of having to answer the question, “Do you have a background screening policy?”…Be sure that you can answer “yes”.

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.