Sound Employment Screening Advice from HR.BLR
July 8, 2010
Tips for Background Checks
To minimize your liability and still be thorough, follow these smart practices regarding background checks:
1. Follow a clear policy that requires background checks for all staff. Don’t forget to include background checks for part-time workers, temps, contractors, and volunteers. All checks do not have to be equally extensive, though. High-risk positions, such as those involving financial responsibility, require more extensive checks. Certain positions, such as truck drivers, security guards, law enforcement officers, healthcare providers, and childcare workers, are governed by special laws with their own background check requirements.
2. Use a job application that requires the applicant to detail all employment, certifications, licenses, education, and other relevant qualifications for the job. The application should require that the applicant sign a certification that the information is accurate.
3. Use a background check authorization and release form. This form must be separate from the application. In California, whether you conduct the background check yourself or hire an outside agency, you must obtain the individual’s written permission in a separate document.
4. Don’t rely solely on online research. Conducting Internet research, such as Googling the applicant or looking at the person’s Facebook page, runs the risk not only of being incomplete but also of supplying erroneous information. You might also learn information that you are not permitted to consider without violating discrimination laws, such as whether an applicant is pregnant. Although you may disregard that information when deciding not to hire someone, it could be hard to prove that the information was not a factor if your decision is challenged.
5. Provide applicants all required notifications. California law has stricter notice requirements than federal law. You must notify the applicant that he or she has a right to know the scope of the investigation and to get a copy of the report. If you use an outside agency, you must supply its contact information. If you rely on information in an agency’s report to decide against the applicant, you must tell the applicant about it before taking the adverse action. You must provide the applicant a copy of the report as well as notice of how to dispute it. If you conducted the check yourself, you must give the applicant copies of public records that you relied on and a notice of his or her rights within a reasonable time.
6. Know the limits of what you can ask about an applicant’s history. In general, California follows federal law in permitting screening services to report negative information (for example, low credit scores, poor references, and court cases) for only the previous 7 years and bankruptcies for the previous 10 years. Under federal law, criminal convictions can be reported indefinitely, but in California, criminal convictions can be reported only for 7 years (2 years for marijuana convictions), except for certain jobs. You can’t ask applicants if they have ever been arrested, but you can ask if they have been convicted of a crime or have a pending criminal case.
7. Document your employment decisions. Regardless of whether the material in the background check was key to your decision, if your decision is challenged, you will be in a better position to defend yourself if you have documented the process well.
8. Store and dispose of all records related to the background check properly. Records containing confidential information gained during background investigations should be stored separately, and access to those files should be limited. Federal law requires the proper disposal of background check information. Paper files should be shredded. When your company disposes of old computers, you must ensure that the information has been erased in such a way that it cannot be reconstructed.