You Had More Questions, We Have More Answers
June 26, 2015
We had almost 200 questions submitted before, during and after our “You’ve Got Questions, We’ve Got Answers: The NEW Basics of Background Screening” webinar.
We couldn’t get to all of your questions during the webinar, but our panel of background screening experts here at EmployeeScreenIQ compiled the most frequently asked questions we received.
We hope you find the answers to these questions useful as you examine your company’s background screening program.
Are unsolicited credit profiles reliable grounds for declination of an individual’s candidacy for employment?
Unsolicited credit profiles are not reliable grounds for declining an individual’s candidacy for employment. Unsolicited credit profiles are used by insurers and creditors to determine eligibility for their services. A pre-employment credit report (which does not, by the way, include a credit score) may be reliable grounds for declining a candidate employment when taken in context as one part of a pre-employment background check and weighing other factors such as the nature of the job, the requirements of the position and state and federal law.
What do we do if we find negative information on an applicant’s Facebook page or blog?
Deciding how to proceed with potentially negative information discovered on an applicant’s Facebook page or blog is a complex dilemma. The online information is difficult to prove ownership and accuracy, which makes it a less than preferable reason to exclude an applicant. However, if the information discovered would potentially disqualify a candidate based on well-established hiring criteria, it might be a reason for a potential employer to dismiss an applicant from the candidate pool, so long as it does not conflict with the following criteria: The applicant has made the negative information publicly available and the potential employer has not gathered it illegally, the potential employer does not use the potentially negative information to discriminate on protected grounds, and the potential employer is not violating applicable federal, state, and local laws.
With Ban the Box legislation, what liability do we face if an offer of employment is rescinded due to the background check?
Ban the box legislation refers to the check box on a job application asking applicants if they have a criminal history. The purpose of ban the box is to allow ex-offenders a chance to get past the application stage and increase their job opportunities by nature of not immediately being disqualified based on their disclosure of previous convictions. Ban the box legislation would have impact on a conditional offer of employment, as the legislation focuses on the application and interview process rather than the post-screening process. Ban the box does not create liability in rescinding an offer of employment, but please ensure that you are following proper adverse action procedures if your decision not to hire the applicant is based in part on the consumer report.
How are companies in the financial industry complying with the new FINRA regulations?
Companies need to be aware of the new requirements under FINRA Rule 3110(e), which is effective 7/1/2015. The new rule applies to firms that are hiring candidates that must complete a form U4, and spells out the investigation requirement and also a new verification requirement. The verification requirement “must, at a minimum, provide for a national search of reasonably available public records conducted by the firm or a third-party service provider to verify the accuracy and completeness of the information contained in an applicant’s Form U4.” EmployeeScreenIQ has services that can assist with this.
What state law restrictions exist with respect to pre-adverse and adverse action notices?
Adverse action requirements are mandated by federal law under the Fair Credit Reporting Act. There are no state laws which exist to nullify the requirement of end users to conduct proper adverse action, however there are different requirements for the content of pre-adverse action notices depending on the jurisdiction. For instance, in some jurisdictions an employer is required to disclose the exact reason that the applicant is being denied employment. You should seek assistance from your general counsel to determine if any of these state laws apply to your screening program.
What do I do when an applicant has pending charges that are violent and would remove them from candidacy?
An employer may exclude an applicant based on a pending violent charge, if it does not interfere with federal, state and local laws. Please seek advice from your legal counsel.
Is it legal to ask someone in an initial phone screening if they can pass a drug test and background check?
Based on EEOC guidance, it is recommended to ask these questions further along in the hiring process. Asking this question in the initial phone screen would also violate ban the box laws in many states and local jurisdictions.
If the criminal history question is removed on the job application due to Ban the Box laws, when can we ask?
It is best to ask criminal history questions later in the process. Many state and local ban the box laws specify asking questions post-interview or after a conditional offer. This allows candidates to be assessed based on their qualifications.
What is the legality of asking criminal questions on employment application in California?
California has banned the box in many cities and statewide for public employers. Check with you legal counsel to ensure state and local compliance.
Can you tell me more about “individualized assessments” and whether they are required by law or statute or merely recommended?
Individualized assessment is a formalized method for an employer to subjectively analyze the applicant’s specific qualifications and how their criminal history may or may not impact their job. Individualized assessment only applies to criminal convictions. The purpose of individualized assessment is to allow the applicant to explain why, despite their criminal history, they should still be considered for employment. Individualized assessment is widely encouraged as a regular practice by the EEOC (Equal Employment Opportunity Commission), but it is not a law. With that being said however, failure to abide by individualized assessment presents opportunity for lawsuits brought on behalf of the EEOC under Title VII on basis of discrimination by nature of disregarding the individual applicant’s circumstances and basing an adverse hiring decision strictly on the conviction itself.
Does a candidate have to authorize and sign for the background check if the company does NOT use a 3rd party vendor?
If, on their own, a potential employer goes directly to the courts and searches for records of a potential employee, they will not need written authorization. If a potential employer calls a previous employer of an applicant to verify only information from the application, written authorization is not required. If the potential employer asks opinion based questions, the background check becomes an Investigative Consumer Report and written authorization is required. It is better to take a conservative approach and seek written authorization for every background check.
Can we use juvenile charges that were adjudicated as an adult against an applicant?
If an individual received a conviction while under age in which they were tried as an adult, you may use the conviction against the applicant. The conviction should be considered in relation to job relatedness using the factors spelled out in the EEOC guidance on the use of criminal history.
What has the industry done to facilitate on-going background checks on current employees pursuant to FINRA rule 3110(e)?
Your screening provider should be able to set up a program to suit your needs. See FINRA question above.
What conditions support random drug testing and how is my company protected when choosing to do random testing?
Your background screening provider should have tools and options available for random screening. Check with you legal counsel when setting up a random drug screening program to ensure compliance.
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