EmployeeScreenIQ held a webinar on April 22 to discuss our Annual Background Screening Trends Survey. The survey unveils new insights into the minds of HR professionals and their experience with criminal background checks, resume lies, background screening compliance, social media background checks and more. Our webinar revealed how your peers and competitors are handling their employment screening process, their greatest screening challenges and how they stay compliant with “ban the box” legislation—or even what they’re failing to do.
Our webinar attendees asked so many great questions about background check compliance that we weren’t able to answer during the allotted hour. We wanted to make sure nothing went unanswered, so our Vice President of Compliance and General Counsel Angela Preston responded below to the questions we didn’t get a chance to discuss during the webinar.
This information is not intended to be a substitute for professional legal advice. Always seek the advice of your legal counsel with any questions you may have regarding federal, state and local laws.
Do employers recognize pardons in the U.S.? – Debbie W.
Pardons in the U.S. are granted by the president. Governors can commute sentences or grant clemency. Pardons, clemency and commutation of sentencing are all terms of art that mean different things in different parts of the world. What we encounter most frequently is a “sealed” or “expunged” record. Expungements are not included as part of an employment background check. By definition, an expunged record should be removed from the public record (usually by the clerk of courts) before a background check is run. If an expunged record is discovered (either because of close timing, if it was not properly removed by the court or if it remains in a third party database), the report should be amended and should be treated as if the record never existed. In most states it is illegal for employers to consider an expunged record in the hiring decision if it is discovered.
‘… specific to the job’ seems very general. Could you reject a candidate for a history of behavior that you feel shows their character? For instance domestic abuse? – Laura H.
The legal standard for “job relatedness” can be defined differently depending on the job, jurisdiction, and other factors. It is a subjective standard, but once discrimination is alleged, the burden is on the employer to demonstrate why a particular behavior or history of behaviors will have an impact on the job. Employers may look at patterns of behavior and identify factors that may show character, such as crimes of dishonesty, fraud, or as you suggest, domestic abuse. A good reference is the EEOC guidance from 2012 which discusses job-related tests here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB
Can falsification of a degree and actual experience on a resume serve as grounds for termination of employment? What is the exposure for the employer? – Karen F.
Falsification of a degree and experience on a resume can serve as grounds for termination. Other types of dishonesty can be considered as well, such as providing false information on a job application. It is recommended that you notify candidates in advance that any dishonesty will lead to disqualification and/or termination. One caveat: Dishonesty as the reason for disqualification may not get you off the hook for FCRA compliance. If the dishonesty is discovered through the background check, you still need to follow FCRA requirements, including pre-adverse action and adverse action notices.
Can you please explain what the individualized assessment is? – Andrea G.
Individualized assessment is described by the EEOC here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB9. It is a process that gives job applicants a chance to explain why they should NOT be disqualified because of a criminal record identified by the employer. It takes into account things like the time that has passed since the offense, employment history and certificates of rehabilitation. You may develop a template or work with you legal counsel or background screening firm to develop an Individualized Assessment process that works for you.
If the background check includes comments from references, do you recommend including the complete reference information in the copy to the applicant, the same as the employer was given? – John B.
Anything that was included in the report for the employer is part of the background report and should go to the applicant upon request or if the report is provided as part of the pre-adverse action process.
If we’ve set a start date for a candidate and, on the Friday before they are going start, we’re still reviewing their background check, or the results aren’t back. Is there anything wrong with postponing their date if we’ve made their offer contingent on clearing the background check? – Jennifer J.
You may postpone an applicant’s start date pending the completion of a background check as long as you do not disqualify them until the results come back, and then only AFTER pre-adverse notice has been sent.
Is it five business days or calendar days between the pre & post adverse letters? – Shannon R.
The best approach timing between pre-adverse and adverse notices is to wait five business days.
Is there a place that has all the ban the box locales? – Kellea W.
EmployeeScreenIQ is implementing a map feature that allows you to see which states have banned the box.
Is there a standard template for the individualized assessment? – Amy S.
A template can be developed using the EEOC Guidance: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VB9. EmployeeScreenIQ has resources available to help you develop an Individualized Assessment process.
Regarding ongoing non-compliance: Could it be due to system/logistical hurdles? Custom adverse action letters, different guidelines by jurisdiction. It’s not manageable if manual. Outside of general execution, how do you make the solution scalable and sustainable with ongoing changes? – Melissa S.
Definitely. The good news is that technology is getting better with compliance related features. To the extent that you can customize letters based on applicant provided information, you should be able to successfully automate some, if not all, processes. The key, as you mentioned, is keeping up with changes in the law. Regular updating of forms and processes is key. While ban the box might not be scalable at this time, other items are, like sending out required pre-adverse action letters with copies of the report and the Summary of Rights. Most screening firms can assist you with these administrative functions. But beware of “hidden” technology features that may reside in an ATS or HRIS system that may actually be incorrect, outdated and could get you in trouble.
Should you run MVR’s on employees that sometimes drive to customers for work but don’t have a company car? – Christa R.
Yes, I would consider the situation you described (employees that drive to visit customers) as sufficient to demonstrate the need for MVR’s. However, it is best to look at the statutes, case law and history in your particular jurisdiction to make sure there is not a specific “job related” test that you need to meet in order to be compliant. Also consider looking at examples in the EEOC guidance that demonstrate what is job-related.
If you missed our webinar and are interested in learning about the latest background screening trends—as well as steps you can take to become more compliant with employment screening laws and the dangers of not doing so—be sure to download a complimentary recording of the webinar below.