We hope you enjoy a guest post from our BlueSky partner Dr. Alan Lasky at United Background Screening.
Over the past few years, litigation has tripled in employment background screening, due to increased regulations and scrutiny of the background screening process by the Equal Employment Opportunity Commission (EEOC), Federal Trade Commission (FTC), and other industry-specific auditing agencies. Recently, employee/candidates have filed a significant number of class-action lawsuits, causing companies to pay out millions of dollars in settlements, creating a wake-up call for organizations to take more time and care in reviewing their background screening and hiring programs. Universal Background Screening has listed five strong areas to review with your legal counsel, pertaining to your employment screening program, to help reduce risk:
1) Following the FTC and EEOC Guidance Factors/Requirements – Over the past few years, both the EEOC and FTC have focused more on the topic of employment screening, making sure organizations are fair and just in their practice of hiring candidates. In April 2012, the EEOC launched updated guidance factors, focused on how organizations use criminal records and how it impacts Title VII of the Civil Rights Act of 1964, prohibiting discrimination based on race, color, religion, sex, or national origin of a candidate. In addition, the FTC and EEOC created documents to educate both the employer and potential employee on the proper background screening process. It is important for employers to know these guidance factors are best practice processes to reduce the risk of perceived discrimination and for educating those firms not following proper screening requirements.
2) Working with an Accredited Firm – Although there are hundreds of screening firms in the United States, there are only a handful that have taken the time and care of becoming an accredited firm with the National Association of Professional Background Screeners (NAPBS). This important accreditation certifies that the employment screening firm has been audited for proper procedures, securely protects private information and understands both state and federal requirements. You should always ask your screening firm whether they have obtained this accreditation since it is one of the only recognized certifications in the employment screening industry.
3) Providing the Proper Disclosure and Authorization Forms to a Candidate – Many of the latest class action lawsuits have ensued, due to organizations failing to provide the candidate a form that has the correct disclosure and authorization language, many times unfortunately including extraneous information. In addition, a job application form should never be merged with the background screening disclosure and authorization. Moreover, a candidate should always sign an authorization form prior to any firm conducting a background check and the signed copy should be kept within the employer’s organization, in the event that anyone ever questions the legitimacy of the authorization. Your background screening firm should have a sample form for your review; you should also always confer with your legal counsel to verify that your company has sound employee background screening processes and procedures in place.
4) Following the Adverse Action Process Properly – If at any time, any part of a candidate’s report influences your organization to potentially not hire a candidate, that candidate has a right to dispute the reported information for any inaccuracies. This is called the Adverse Action Process. Many organizations have been sued for not following the federally required procedures, which likely could have been avoided if they had understood the simple, but required, process. It is an excellent idea to work with your company’s legal counsel and background screening firm to confirm that you have the proper procedures prepared and that your organization’s employees, including new hires, know, understand and follow the required process.
5) Reviewing Your Own Policies/Procedures with your Legal – It is always recommended to work with your legal counsel as often as necessary to verify that no changes to the laws/regulations pertaining to employment screening have occurred either federally or in your state(s). Also, the periodic review of internal hiring procedures is essential so that your organization reduces its risk by committing to legally sound, standardized screening and hiring procedures. By providing information to your employees in your written company policies and procedures manual and regularly updating hiring staff on the required procedures, you will ensure consistency in your hiring program.
By paying attention to these five areas in your background screening program, you will help reduce risk of lawsuits or other unintentional consequences from inadequate processes. If any additional information is needed, we always suggest speaking with your legal counsel and you can always reach out to Universal Background Screening, a partner of the BlueSky, dedicated to providing compliant and accurate employment screening.
