Your HR staff may or may not understand the complex issues surrounding background screening. However, it is important to know how regulatory compliance, risk management, and basic fair hiring practices shape the screening process, and to design your procedures to comply. Failing to train your staff can lead to hiring mistakes, costly lawsuits, or even worse. It is not something that you should leave to “learn by doing.” Therefore, in this post we try to provide a training framework for what your HR team needs to know.
Fair Credit Reporting Act (FCRA) Basics
The FCRA regulates how organizations can use ‘consumer reports’ to make decisions on whether to accept or reject an applicant. As the Act title suggests, this includes credit reports used for making decisions about loans, and so forth, but it also includes any report generated to help decide about an applicant’s fitness for employment. The law applies any time an organization uses a third-party Credit Reporting Agency (CRA)—aka background screening company—to provide a background report to help decide to accept or reject a job candidate. Your HR team needs to understand what the FCRA means and how it impacts the process.
The FCRA stipulates a very strict, well-defined set of rules guiding how applicants’ rights are protected, when individualized assessments may be required, and how disputes over background screening information used to reject an applicant can be resolved. Continuous communication with the applicant is mandated to inform the applicant about the fact that screening will be conducted, when that information might be used to reject, and how the applicant can appeal that decision.
Background Screening as Part of Your Processes
The hiring process design should include background screening with all the compliance requirements built into the timing and procedures. Normally, background screening is appropriate for the small pool of qualified applicants who pass initial evaluations, or perhaps just for those who have contingent offers of employment pending the background check. To avoid disruptions at the crucial moment when an applicant is transitioning from potential to actual employee, compliance steps, such as getting applicant permission to do the background check, should be built into the process and be well-understood by your team and others involved in hiring.
Role-Related Risk Management and Screening
In the big picture, background screening is part of your risk management plan. You need to have a method to assess the risks of each job role within the overall organization risk profile, and apply that to the type and depth of background screening you do. Your staff should understand how to evaluate the risks of a given role and how those risks play into your screening requirements.
Specification of Rejection Criteria
For legal reasons and simply to ensure fairness in hiring, you need to define, in advance, what characteristics or factors would lead to the rejection of an applicant. Legal, regulatory, and case law all limit the feasibility of using simple blanket criteria like “applicant was ever convicted of a felony.” The thrust of employment law is to require individualized assessments that focus on job-related factors that are necessary for the job in question. HR professionals and hiring managers need to understand how rejection criteria are set and how to apply rejection criteria fairly.
A fair, compliant, and effective screening process requires that HR understands certain rules, regulations, and best practices. Design your training program with these tips in mind and you’ll be on your way to making better hiring decisions and treating applicants fairly, all while maintaining compliance.