Implementing an Effective and Compliant Background Check Process

Jean Seawright

With Spring hiring in full swing, we’ve received a number of calls and emails from Garden Center Group members inquiring about background checks.

Without a doubt, background checks are essential to help ensure that you hire fit, competent, and qualified workers who do not pose an unreasonable risk of harm to your business or customers. The cost of background checks is surprisingly low, but can pay off in spades by reducing the risks associated with negligent hiring claims.

Whether you are a seasoned sleuth or considering background checks for the first time, here are some important background check guidelines and recommendations to keep in mind:

1. Include a proper background check disclaimer in classified advertisements.  Regardless of where you post vacant job ads, ensure your ads do not state: "No criminal convictions" or "Must pass background check."  To minimize the risk of a discrimination claim and to comply with Equal Employment Opportunity Commission (EEOC) provisions related to background checks, simply state, "Background checks required."

2. Use an employment application with a properly-worded conviction question or, depending on your location, no conviction question.  Ensure your employment application does not ask candidates about arrest records.Where permitted, your employment application should, however, include a question about prior conviction records that is worded as broadly as possible (e.g., not limited to either misdemeanor or felony convictions only).  All conviction questions should include the disclaimers, “Answering “yes” to this question is not an automatic bar to employment” and “Arrest records and juvenile, sealed, and expunged records should not be disclosed.”  Depending on your state, the conviction question on your application may also need to include other special disclaimers. And, if you have a business or conduct business in a location with a “ban the box” law that covers private employers, you may be prohibited from including a conviction question on your application.

As of March 1, 2017, these locations include:

    Los Angeles, California

    San Francisco, California

    Connecticut

    District of Columbia

    Hawaii

    Illinois

    Chicago, Illinois (Not superseded by Illinois state law)

    Baltimore, Maryland

    Montgomery County, Maryland

    Prince George’s County, Maryland

    Massachusetts

    Minnesota

    Columbia, Missouri

    New Jersey

    Buffalo, New York

    New York City, New York

    Rochester, New York

    Oregon

    Portland, Oregon (not superseded by Oregon state law)

    Philadelphia, Pennsylvania

    Rhode Island

    Austin, Texas

    Vermont

    Seattle, Washington

If you have a question about whether or not your business is covered by a “ban the box” law, or if you have questions about proper verbiage for conviction questions on applications and during interviews, contact Seawright & Associates for consultation specific to your location. (Note: We also offer employment applications that are customized with the employer name and logo throughout and that are compliant with applicable state and federal hiring regulations. Our applications are available to Garden Center Group members at a reduced rate.)

3. Use an FCRA-compliant disclosure form and authorization form.  If you are conducting background checks through a third-party vendor (Reference Services, Inc., backgroundchecks.com, HireCheck, or some other vendor), you must comply with the Fair Credit Reporting Act (FCRA) provisions related to obtaining and using consumer reports. This is because third-party vendors are considered “consumer reporting agencies” (CRAs) and the reports they provide are “consumer reports.”  As users of consumer reports, employers are subject to certain FCRA provisions.  One such provision requires employers to provide candidates with a specially-worded disclosure form and with an authorization form-two separate documents.  The disclosure and authorization language/forms cannot be part of the employment application or attached to it in any way (including electronically).

In addition to complying with FCRA regulations, depending on your location, your business may be subject to special state consumer reporting laws.  If it is, your disclosure form may need additional disclaimers and information. Be sure your prehire background check authorization and disclosure forms comply with all applicable consumer reporting regulations!

(Note: If you are in need of a disclosure and/or authorization form that is compliant with state and federal regulations, contact Seawright & Associates. We develop these forms for employers and offer them at a reduced rate for Garden Center Group members.

4. Obtain relevant background check records. Decisions about which background reports to order should be based on specific position attributes and the potential risks and hazards for a given position.  For example, if you have a position that involves driving on public roadways, conducting business inside a customer’s home, or working with or around children, there are elevated risks associated with these types of positions that may warrant additional or different background check reports.

Generally speaking, for a position that does not involve special risks and that is not in an industry or position with mandated background check requirements, we recommend obtaining: (1) a social security verification that includes a list of addresses where the candidates lived and established credit, (2) a nationwide database scan that includes (among other searches) sexual offender registries in all states, and (3) county criminal history records for all locations where the candidate lived over the past 7-10 years. For positions that involve driving for company business (in a company-owned or personal vehicle), we also recommend including a Motor Vehicle Report (MVR) from all states where the candidate was licensed to drive over the past 7-10 years (if available; many states now limit the length of time for reporting MVR histories).

In addition to these background checks, we recommend a prehire drug screen for Garden Center candidates.

Seawright & Associates has arranged for Group members to receive special discounted rates for background checks from Reference Services, Inc. (RSI), a third-party background check vendor.  To download the Background Screening-Group Discount Program form and pricing, see the CLIENTS-ONLY section of the Group WebSystem and POWERtools page. RSI can assist you with determining which background check reports are appropriate for your business and positions.

5. Use a Pre-Adverse Action and Final Adverse Action Notice when you deny employment based in whole or in part on results from a background check.  If you are conducting background checks through a third-party vendor (see #4 above), you must also provide candidates with a Pre-Adverse Action notice if you decide not to hire the individual based in whole or in part on information from the background report.  This includes situations where the candidate falsified the answer to a conviction question on the application.  This Notice gives the candidate an opportunity to provide you with information to dispute the findings (e.g., evidence that he or she was a victim of identity theft). If the candidate is unable to provide information to dispute the background report, you must follow-up with a Final Adverse Action Notice that informs the candidate that your decision not to hire him or her is final.  These notices can typically be obtained from the background check vendor.

 6. Exercise caution with arrest records.  The Equal Employment Opportunity Commission (EEOC) and many state fair employment agencies prohibit employers from making an employment decision on the basis of an arrest record alone. However, the EEOC and many states permit employers to consider the conduct behind the arrest as a factor in an employment decision. If you receive a criminal history report with one or more arrests that do not result in convictions but that nonetheless cause concern, contact Seawright & Associates to discuss options for addressing the situation.

7.   When necessary, obtain additional information. Sometimes, a criminal history report does not provide enough information to make an informed employment decision.  In these situations, it may be necessary to obtain additional facts by researching the court docket and associated records online, obtaining a police report, or obtaining/reviewing other relevant documents (such as a restraining order). Obtaining and assessing relevant information and records such as these can help make an informed and wise hiring decision.

8. Ensure all employment decisions based on a criminal record are job-related and consistent with business necessity. Employers covered by Title VII (the federal anti-discrimination law) must ensure that all employment decisions-including those related to use of a criminal record-are job-related and consistent with business necessity. To meet this burden and to minimize the discrimination risks associated with use of a criminal record, employers should consider the following when determining the appropriate employment action based on a criminal record: The nature and gravity of the offense or conduct; the time that has passed since the offense, conduct, and/or completion of the sentence; and the nature of the job held or sought.  Employers should also consider relevant individualized evidence such as the facts and circumstances surrounding the offense or conduct, the number of offenses for which the individual was convicted, the age at the time of the conviction and release from prison, evidence that the person worked post-conviction with no known incidents of criminal conduct, the length and consistency of the employment history before and after the offense, rehabilitation efforts, employment reference results, and other similar information.

Seawright & Associates is available to help you analyze background check results and assess the risks associated with hiring a given candidate. Discussions about candidates and review of background check results are covered under the Group retainer fee, which means there is no additional charge for this consultation!

Implementing a background check process requires a careful and thoughtful approach, but the time, effort, and cost are well worth it.  Moral of the story: When it comes to a hire decision, the more information you have, the better.

Remember:  Hire hard, manage easy . . .  and reduce risk.

Jean