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Background Checks – A Refresher
By VICKY BROWN
Alright – you found a great candidate and you want to make an offer. Don’t forget the background check.
Now I think background checks are a great idea for prospective employees. While they can’t tell you everything about a person, they can give you a bit more insight, and even more importantly these days – help confirm the candidate’s identity.
Oh yes, that’s a thing. With a lot of companies doing remote hiring now, there are times they may not even meet the candidate in person until well into the process. A background check will at least verify that the social security number is valid, take a look at past residences, and of course provide information on prior criminal history records.
Now, I’ll get into the criminal check issues in a minute. But first, let’s talk about some of the requirements around doing background checks.
On a national level, background checks for employment are managed by the Equal Employment Opportunity Commission or EEOC. They ride herd on all things discrimination, harassment etc. And any time you use information from a background check to help you make a decision about hiring someone, well then – you have to comply with federal laws protecting candidates (and employees) from discrimination – and the EEOC enforces those laws.
There are also a fair number of regulations about background checks, at the state, and sometimes local level as well.
It’s important that you make an offer before you run the background. While the laws are different in different states – in many states, like California, you can’t delve into certain areas with someone who is merely a candidate. And in fact, a new update to the law says you can’t even consider information that the candidate may have volunteered during the interview process. So, it’s best to make a conditional offer before running the background report.
A conditional offer is just like a regular employment offer, except it states that the offer is conditioned on receiving satisfactory references which may include a background check.
“…a new update to the law says you can’t even consider information that the candidate may have volunteered during the interview process. So, it’s best to make a conditional offer before running the background report.“
Additionally, background checks fall under the Fair Credit Reporting Act – you know, that thing you hope will help you when you’re fighting with your credit card company. Well, they cover background investigation notices too. You have to provide the federal and state disclosure notices, rights summaries, and you have to get written consent from the applicant. Generally your background check company will provide all these documents to you for use with candidates – and it’s critically important that you provide all these notices and get the consent BEFORE you run the background check.
And a pro tip here – always use a full service background check company. This is no time to try a DIY solution. A full service company will get you the most accurate information, and they will provide all the required notices, summaries and authorization. So, make it easy on yourself (and stay out of trouble) and use a company that specializes in background checks.
Now, you should also know that there are different types of background reports you can request. In addition to criminal checks, you can do employment and education verification, driving record checks, identity verification, credit history checks, and almost everything in between. The catch is – the information you seek has to be related to the job duties. So if the job doesn’t require the person to drive on the company’s behalf, then you don’t have a valid reason for pulling a driving record.
And that applies to credit checks as well. I know a lot of employers want to run credit checks, but it’s illegal in California unless you can demonstrate that the job has specific requirements, for example the job is non retail and involves regular access to a customer’s date of birth, social security number and bank or credit card information – so basically, if they have access to all the info they would need to hijack someone’s identity. Or if the person will have regular access to cash totaling $10,000 or more.
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Now, there are exemptions, but for most jobs, it would be best to stay away from credit checks, because most jobs just won’t qualify.
Alright, so what do you do after the background report has come back – and it has a ding on it.
Well, you may have heard about a movement called Ban the Box. The name stands for getting rid of the checkbox that usually appeared on employment applications, asking if you have a criminal history. More generally the movement advocates for expanding employment opportunities for people who may have a prior criminal conviction.
Basically, you are not allowed to simply deny someone a job just because they have a criminal history. You have to really look at both the infraction and the job duty requirements, to figure out if the job will be impacted by the conviction.
You’ll notice I said ‘conviction’. You generally can’t even consider anything that didn’t result in a conviction, or was referred to a diversion program. Convictions that have been sealed, dismissed, expunged or eradicated are also off limits.
You’ll have to do an assessment of the findings.
So, for example, if someone took a joy ride when they were 17, and now they’re 57 with no other criminal history, and the job doesn’t even involve driving? Well, you wouldn’t have much to stand on in rescinding their job offer.
The process of doing the assessment is really by the numbers; but it includes very specific steps that you have to take in the proper order.
It may seem like a lot of steps, but it’s worth it to bring on someone who could add something really special to your team. And when you think about it – sometimes we all need a second chance. Oh, and it’s the law.
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