EEOC and Background Checks Go Hand in Hand

EEOC and Background Checks Go Hand in Hand

Making the proper hiring decision can be a heavy task, especially when using background checks to assist in the hiring process. You’ve weeded through the potential candidates, made your selection and spent the money on vetting your potential employee against your background check procedures. But, what if that person’s criminal history does not align with your company goals? Do you even have a procedure for disqualifying applicants? If so, does that procedure align with the Equal Employment Opportunities Commission’s (EEOC) guidelines for handling these types of situations? As a human resources professional it is important that these guidelines be understood before actually running background checks.

Be consistent when disqualifying individuals from employment

As your background check provider has hopefully told you, there are laws that you must follow when performing background checks for employment purposes. These laws are written in the Fair Credit Reporting Act (FCRA), which is governed by the Federal Trade Commission (FTC) and most recently the Consumer Financial Protection Bureau (CFPB). Background screening companies are required by law to notify their clients about the FCRA, but essentially, that is where the line is drawn. The compliance and hiring decision is typically left for the employer to discern within their hiring procedures. The FCRA and other background check laws are very important, but beyond the scope of this article. The information herein will focus on the EEOC’s guidelines to making hiring decisions when background checks are involved.

It should go without saying that you as the employer should be constantly on the lookout for discrimination against any person in regards to race, gender, national origin, color, disability, age, sexual orientation or religion. The best way to do this is to perform the same background check for every employee within a certain job type (with absolutely no exceptions). For example, if you have an entry level position in your company, a new applicant must be screened with the same background check level that each employee prior to them (in the same position) has had. Be consistent when disqualifying individuals from employment. It is best to have a firm policy in place for what is not acceptable on a background investigation. The EEOC states that “blanket policies” are unacceptable. An example of a very common blanket policy is “any potential employee that has a felony conviction is not eligible for hire with ABC Company.” Remember to be very specific when writing your hiring policy. The EEOC says:

Exclusive Download: Get More Applicants From Job Boards

Don't post and pray. Get this exclusive FREE cheat sheet and take active steps to dramatically increase the results you get from your job board posts.

“Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a ‘disparate impact’ and is not ‘job related and consistent with business necessity.’ “

It may be necessary to make exceptions to your policy in certain situations. Inquire about a situation from your potential employee through an “individual assessment.” Get the entire story from their angle before making a decision. Take into account if the conviction is directly related to their ability to perform the tasks involved with the position, within the best interest of the company, and the safety of its employees. Consistency is key; apply the same level of inquiry to everyone and make exceptions due to concrete details. Treat every situation fairly—make sure two applicants with the same criminal history are treated the same way. Never base a decision on race, gender, national origin, color, disability, age, sexual orientation or religion.
Lastly, be mindful of the EEOC’s recordkeeping requirements:

Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.”

Managing risk is one of the most difficult things that an HR professional must do. Staying abreast of local and federal laws is of the utmost importance. ProScreening recommends that employers examine their current policies and processes to ensure that they are remaining compliant with each of the issues discussed.

Legal Disclaimer: This article is designed solely for informational purposes, and should not be inferred or understood as legal advice. Persons in need of legal assistance should seek the advice of competent legal counsel.

If you have any further questions about the items mentioned in this article, or if you would like ApplicantPro to assist you in building a compliant background check program, please contact us.

maximize job boards

Get More Applicants from Job Boards

Download this exclusive guide to improve applicant flow from job boards.

First Name*
Last Name*
Email*
Share this article


Increase qualified applicants

Track Down More Koalafied Applicants!

5 Proven Ways to Increase Your Qualified Applicants

Click Here



Related Articles

we are thankful for great applicant tracking systems!
Why We're Thankful for a Great Applicant Tracking System

Find out what people who have a great Applicant Tracking System are grateful for, so you can see what other systems are capable of!

Continue

team of hr tracking the source of the company hires
Why You Should Start Tracking Source of Hires Today

Understand better one of the most telling and most important metrics for the growth of your organization: Tracking Source of Hires

Continue

automate phone screening for applicants with Dialogg
Automate Phone Screening Interviews with Dialogg

Applicant phone screening saves time & resources for both you and your company. Learn how easy it is to automate your applicant screenings with Dialogg.

Continue




Want a tour?

Schedule a Demo

Let's get started!

FREE Trial