We spend a lot of time writing and talking about the best practices for using background screening to help select the most qualified applicants for your job openings, and to evaluate employees for a change in status.
But sometimes it helps to hear what NOT to do.
We have observed and heard about many things employers do for a “background check” that are not effective, or even counter-productive. In this post, we offer some of the no-no’s in one place to help you avoid the wrong turns.
1. Don’t rely on intuition; background check all your applicants.
Background checks should never be performed on an ad hoc basis, or based on your gut-feeling about a candidate. Of course the actual content of the background check will vary depending on the type of job in question. But the process should be applied the same, non-discriminatory way for every applicant, and every applicant for the same job or job type should be screened in the same way.
2. Avoid the “check box” for criminal histories.
The ban the box movement has gained traction in state and local jurisdictions across the country. These laws differ from each other in many ways, but the one thing they have in common is that employers should not have a check box or yes/no question asking whether the applicant has a prior conviction. A blanket exclusion based on a criminal history of any kind—even limited to felony convictions or similar restrictions—is likely to violate an applicant’s rights. The EEOC mantra that using criminal background in hiring decisions should be job-related and a business necessity is right on point in this issue: Employers who use blanket exclusions are at risk of litigation. At the heart of the matter, these policies aim to increase hiring for ex-offenders.
3. Do not assume a one-size-fits-all approach will allow you to reject an applicant without consequences.
One of the thrusts of current government policy is to ensure that using criminal background checks to reject an applicant should take the applicant’s personal circumstances into account. In other words, even your carefully designed background screening process that leads to adverse action based on a specific felony conviction may be discriminatory if you cannot show that it applies to the specific applicant, and demonstrates that he or she is unfit for the job. The “individualized assessment” does not have to be applied to every applicant, but it is unwise to reject applicants based on criminal history without doing one.
4. Avoid the background checking ‘behind the scenes.’
Doing a background check without informing and gaining consent from the applicant or employee is a basic error. If you use a background screening company (a Consumer Reporting Agency), the Fair Credit Reporting Act (FCRA) requires you to inform the applicant. Even if you do the background check yourself, the applicant has rights under laws and regulations such as the EEOC. For basic fairness, the applicant should know that his or her history will be reviewed and used in the hiring decision, and be able to correct the record. An employer’s failure to follow the communication steps laid out in the FCRA could lead to very expensive legal consequences.
5. Do not use social media profiles as if they were a free source of info.
Online social profiles are a goldmine of information that is very risky to use. Those profiles are subject to a fast-evolving set of privacy standards, and the wise employer who uses them should be up to speed on the latest court decisions. More generally, using online information to make employment decisions is covered by all the laws and regulations as other sorts of information are. Facebook is no different than court records in this regard, and it should be treated the same way.
6. Do not rely on an arrest record.
An arrest is not a conviction. Someone who was arrested may have been found innocent at trial, or not even brought to trial. Technically, employers can use certain non-conviction records as part of a background investigation to establish the character of an individual, but this should only be done as part of an individualized assessment that is clearly job related and a business necessity. Tread very carefully where non-convictions are concerned.
What about Do-It-Yourself background checks?
Reputable, experienced, and professional background screening companies understand and follow best practices, and have processes in place to comply with a bewildering set of local, state, and federal laws. For this reason, we believe you should use a professional agency. Internet data sources are seductive, be mindful that many are incomplete and unsuitable for use in a hiring decision. But, if you are able to comply with relevant laws, search all the relevant data sources, and maintain appropriate communications with your applicant, then you certainly could perform these background checks yourself.
The large majority of businesses in the U.S. do conduct routine background screening as part of the employment process. Most of them use professional screening agencies because it is cost-effective and reduces the chance of costly errors. Whether you do or do not use an agency, please be sure to avoid the risky bets by making hiring decisions based on incomplete information or process. But above all, don’t trust your intuition—get the facts.