Author: Michael Gaul
The other day, I arrived at the office greeted by news related to three separate lawsuits involving employment screening companies, their employer-customers, and applicants trying to gain employment.
Each of these suits involves a complex web of legal issues and accusations – one involving an alleged failure to follow adverse action notification protocol that resulted in an expunged criminal record being used against a prospective employee; another revolves around the alleged misuse of background screening disclosure and authorization forms and reporting of background information that is not legal for a background check company to report (resulting in adverse action against a hopeful applicant); and the third was news of a $18.6M settlement over the use of unverified criminal database research.
The nitty gritty of these lawsuits are of great interest to people like me who spend their days thinking about employment screening practices. But for the average recruiter, hiring manager, CEO, and business owner who are simply trying to hire the best people they can, and who rely on employment screening providers to take care of checking the box on background checks, these lawsuits are easy to ignore. “It won’t happen to us.” “We’ve never had a problem before.” “I’m pretty sure we’re covered.” “My background screening provider knows what they are doing.”
The idea that a company’s practices might come under fire by a candidate who didn’t get the job due to the results of a background check is not a far-fetched idea. There is no better time than now for everyone involved in the process to heed the warning of these recent lawsuits to ensure our practices are tied up tight.
The value of doing “the right thing”
As I read through the half ream of paper related to these events and tried to make some sense of the issues, what struck me is that much or all of this could be easily avoided if the parties had just developed and implemented policies that treated people fairly. Novel concept this fairness, it’s probably not an accident that the federal law primarily governing background screening uses “fair” as the beginning of its name, and the words “fair,” “unfairness,” and “unfair” appear in the relatively short Statute no less than 27 times.
Clearly if the allegations in these complaints are true, in several instances the practices weren’t fair to the applicant. In fact, they were noncompliant, unlawful, and high risk to both the background check provider and their employer-customers.
As a background screening firm with a risk management heartbeat, we continually remind our operations team of the human connection to the work they perform. More than transactions or orders, we recognize that what we do tangibly affects applicants and employees, as well as employers, as we try to protect people, brands, profits, and the public at large.
Operating in the gray areas of the Fair Credit Reporting Act, while technically permissible, can often have the unintended consequence of reducing the margin for error, thus increasing the likelihood that a technically compliant process goes off the rails.
Section 602 (a)(4) of the FCRA mandates that background check providers exercise their grave responsibilities with fairness, and a respect for the consumers right to privacy. Section 602 (b) goes on further to require that background check providers adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information. In our opinion this is reasonable and frankly, how it ought to be.
We all have a duty to balance the needs of the employer with the rights of the applicant and employee. We have to do what is right across the board. When we do what is right and fair we are protected by the law that regulates us. Remember, the FCRA exists because we recognize the potential for unfairness in the process. When we comply with it, it shields us; but if we act irresponsibly our shield can become their sword.