As a background screening company, we field a wide range of questions from employers concerning their use of background checks in the hiring and retention of employees. Today we announce the start of a new series spotlighting some of our most frequently-asked questions and hopefully give you some information you can use to make better hiring decisions, maintain compliance, and increase your productivity.
Our first question relates to the rights of your employees and candidates.
Question: “What Rights Do My Employees and Applicants Have in the Background Screening Process?”
First let’s talk about the goals of employment screening. Employers use screening to mitigate their hiring risks and build a safer, more productive workforce. Employers can use information found in a background report to help assess an individual’s character, credentials, and overall suitability for a given role. In many cases, especially in highly regulated industries, screening is a required part of the hiring process. The case for an employer’s use of background screening is strong but there is an equally strong case on the part of candidates and employees who are subject to these background checks that they are judged fairly. This is where the Equal Employment Opportunity Commission (EEOC), the Fair Credit Reporting Act (FCRA), and laws such as “Ban the Box” (BTB) come into play.
Employees and applicants definitely deserve to have their rights protected.
Answer: Subjects of employment screening have legal rights throughout the process.
A candidate or employee’s rights begin as early as the job application phase. Whether this is an existing employee applying for a new role or a new applicant applying for a role within your organization.
When asking someone about their background, employers must treat each individual the same as any other, regardless of race, national origin, color, sex, religion, disability, genetic information or age. If subject to “Ban the Box” laws, employers are not allowed to ask about criminal backgrounds in the application process.
When you are ready to start a background check, which most often does not occur until the final phases of the hiring process, through a third-party screening provider, other rules apply to protect the rights of the subject.
First, you must obtain written permission from the subject of the background check prior to getting the report. If the subject declines to give permission, you have the right to reject the application.
Next, if you come across something in the background report that is unfavorable and might cause you to reject the applicant, you must provide a copy of the report and an official “Summary of Your Rights Under the Fair Credit Reporting Act” from the Federal Trade Commission (FTC), that lets the subject know where the report came from and how to contact the company that generated the report. This gives the subject the opportunity to dispute the accuracy and/or completeness of items in the report.
Before you make a final determination to reject an applicant based on something you found in a background check, your applicant has the right to a formal adverse action process. In a nutshell, this entails notifying the applicant that you plan to reject them on the basis of their background report. In turn, giving the applicant time to respond with information that might explain their situation. If the applicant does return with an explanation, you must perform an individualized assessment of the applicant’s situation, ensuring that the adverse action is job-related and due to business necessity.
The overarching right of employees is one of fairness. Remember that employers must be careful to avoid disparate impact in which employment policies have disproportionate “adverse impact” on members of a protected class under Title VII of the Civil Rights Act, as compared with non-members of the protected class. Read more about disparate impact here.
As an employer, you have the right to use employment screening in your hiring process. 80% of corporations in America rely on screening. At the same time, it is in everyone’s best interest that your process is fair and respectful of the rights of all individuals.