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January 4, 2022

Background Screening: What to Start Doing, Stop Doing, Keep Doing

In business, change is constant. Staying abreast of trends, laws, and overall best practices is key in running a company, especially for HR pros.

change in business

If it’s been a while since you’ve revisited your background screening process, you might have dangerous holes in it, and portions of it may have fallen out of favor in recent years. These are both scenarios that can get you sued!

Here’s a list of what you should start doing, stop doing, and keep doing to make sure your background screening process is the best it can be.

Start Doing

Maintain a written background screening policy. A written policy empowers current employees involved in hiring to refresh themselves as needed, and the new people that join the hiring process can access it. A written policy keeps your processes uniform and cohesive across the board. This is the best foundation you can use to ensure a fair and relevant background screening process.

Require written authorization from applicants. A key responsibility of the employer is to disclose screening processes to the applicant. The authorization must stand alone, meaning it does not need to be part of the employee handbook or the application.

Require more explanation from you vendor. Pay close attention to how your background screening company answers your questions and the amount of time it takes them to get back to you with any follow-up information. They should also be communicating new trends and laws so you can adjust your background check policy accordingly.

Follow the FTC’s requirements for the proper disposal of private consumer data. Employers are legally required to protect consumer data. Per the FCRA, current requirements include limiting the dissemination of consumer information to only those with a legitimate need, permissible purpose and authorized by the consumer retaining consumer data in a confidential manner, and destroying data in a secure manner as to render information inaccessible, unreadable, and/or unrecoverable.

Per the FTC Rules, the following methods are permitted: 1) burning, pulverizing, or shredding, 2) destroying or erasing electronic files and/or 3) after conducting due diligence, hiring a document destruction company.

Stop Doing

Blanket background screening for every position. A background screening policy must address that different positions need to be screened in different ways. For example, an accountant may need to have their credit pulled during their hiring process but doesn’t need a motor vehicle records search. A warehouse loading position would NOT need their credit checked.

Screen applicants based on “gut feelings”. If clean-cut, attractive applicants aren’t being screened but the ones with a bunch of tattoos and piercings (or the ones who look like your ex) are, your company could get sued for discrimination. Set a process that promotes diversity, equity, and inclusion and stick with it for ALL job candidates vying for the same position.

Ask applicants about their previous pay. The salary history question has fallen out of favor because it encourages pay disparity. If, for example, a woman and man have applied, but the woman is making $70,000 a year and the man is making $75,000 a year, the woman’s offer may be lower than the man’s offer. Several states have passed laws banning this question and more are in the works.

Ask about criminal history early in the hiring process. Blocking past criminals from landing a job isn’t fair, and several states have “banned the box” altogether, and/or passed a Second Chance Law. This trend gives job seekers an opportunity to be viewed by their education and experience, rather than being discarded automatically because of their past criminal history.

Keep Doing

Screen for drug use. Drug screening is one of the biggest employer hot topics around. Yes, there are states and cities that have legalized cannabis and prohibited screening for marijuana use during the employment screening process. This doesn’t mean your company should stop screening for all drugs! In addition, there are reasons to still screen for recent marijuana use, such as pre-access, post-accident, or reasonable suspicion, just like you would for recent alcohol use.

Follow and understand the laws in the cities and states your company operates. A few dozen new laws and regulations that effect background screening pass EVERY YEAR! Stay abreast of the regulations in the geographic areas where you do business. Otherwise, you could be out of compliance and open to costly hiring litigation for laws you missed.

Provide training to everyone involved in your hiring process. One-time training isn’t enough education on an important procedure like background screening. Just one person who doesn’t completely understand your policy can derail it. Periodically review your policy and any recent changes with everyone involved in your hiring process.

Follow compliant Adverse Action procedures. Deciding not to extend an offer of employment because of information you found in the background check is acceptable. You just need to follow Adverse Action procedures every single time. This includes notifying the applicant with a Pre-Adverse notification and sending a Final Adverse Action letter after the applicant has ample time to dispute the information (usually at least five business days).

Staying agile and willing to learn and adapt policies is the best advice HR Pros can follow. Keeping up with regulations, making certain hiring managers are trained on protocols, and following authorization and Adverse Action procedures consistently set you up with a productive, highly-functioning background screening process.

Susan McCullah

Susan McCullah is the Marketing Project Manager for Data Facts Background Screening Division.

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