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Background Investigations in the Employment Process – Part II

January 10th, 2012 by Jolene Jefferies

As I mentioned in Part I of this topic, an employer’s decision to implement a background investigation program is certainly no small undertaking. It is important to first research and understand the relevant laws regarding the use of background investigations in the employment process, which I reviewed in Part I as well. I thought it would also be helpful to provide a list of tasks that employers may wish to consider when creating a background investigation (BI) policy and program:

  • Develop a formal policy covering the intent and guidelines of the BI program, including a definition of the search elements (see Part I) that are part of an investigation, and whether the BI will be conducted on a post-offer or a pre-employment basis. Most employers conduct BI checks on a post-offer basis to limit adverse impact and to reduce expenses.
  • Determine the search elements by job category or position to include in each background investigation. Ensure the search elements you check for each job title are job-related and consistent with a business necessity. For example, a policy that disallows hiring individuals with convictions in the last 10 years related to theft for an accounting or bookkeeping position may be relevant, but conducting a credit check for a mechanic who doesn’t deal with customers directly or handles money may not be appropriate.
  • Include in your policy a statement concerning the use of social media in conducting background checks. Employers should seek legal advice regarding privacy restrictions and limitations on the use of social media for BI purposes.
  • When developing your policy, remember the EEOC issued guidelines as criteria for how and when employers may use the results of a criminal background check to deny employment. The employer must consider:
  1. The nature and gravity of the offense
  2. The amount of time that has passed since the conviction and/or completion of the sentence
  3. The nature of the job held or sought

For criminal BI checks, employers will also want to determine whether to check felony and/or misdemeanor conviction records, determine how far back to check, and develop guidelines for “crimes of concern” to appropriately and consistently consider job-related circumstances of a conviction, such as revocation of a job offer.

  • Determine the policy for internally promoted or transferred employees and whether they are subject to additional background checks depending on the position for which they are promoted or transferred into.
  • Revise the employment application to capture all the data necessary to complete a thorough investigation and to obtain an applicant’s written consent to obtain the consumer report(s). Consumer reports used to evaluate an applicant’s eligibility for prospective employment fall under the provisions of the FCRA (see Part I). The online and/or paper application is one way employers may choose to obtain the applicant’s written consent to conduct a BI check. Employers must also pre-notify the applicant, in writing, regarding the company’s intent to conduct a background investigation, including a statement of the applicant’s rights under the FCRA. To meet the pre-notification requirements, a separate disclosure notice should be created and provided to the applicant to inform him/her that a consumer report may be obtained for employment purposes.
  • Develop a process and related notices to comply with the FCRA’s post-notification requirements. For example, if an applicant is denied employment based on an unfavorable investigative report, the employer will need to notify the applicant of that fact and provide him/her with the reporting agency’s name and address to obtain a free copy of the consumer report.
  • Determine the review and escalation process for reported discrepancies and identify who in the company will have final authority for a “hire” or “no hire” decision.
  • Develop training for HR employees and hiring managers to include a BI policy review and related laws, orientation to categories and nature of various crimes, how to instruct applicants to complete the application, what questions to ask in the interview, documentation and record-retention guidelines, etc.

I hope this helps, but remember that the information provided herein is no way intended as a substitute for the legal advice and counsel of your attorney or other professional. Please don’t hesitate to reach out if I can be of further assistance.

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