Background Checks and the Hiring Process

Most businesses have a hiring process in place. Owners and managers know the proper way to conduct an interview. They know the questions they can and cannot ask.

When it comes to background checks, most businesses are not as knowledgeable. They don’t include background checks because they do not feel that they need them or they do not feel comfortable with the process, either through lack of knowledge or fear of reprisal.  Not conducting background checks on your employees, pre and post hire, can open your business to litigation.

Not having full knowledge of your employee’s character attributes or past criminal and civil activities may be exposing your employees and business to harmful situations. There are many incidents where a tenured employee commits a heinous act in the workplace or embezzles. There are also incidents that could have been avoided had the employer made the extra effort to look into the applicant’s past.  A bad driving record that went unchecked and resulted in a company vehicle being involved in an accident, for instance, or the new hire having financial issues and taking advantage of access to company funds.

There are two important Federal Acts that employers must follow. Once these acts are understood, adding background checks to the hiring process is not difficult.

The Civil Rights Act of 1964, Title VII, cites that employers cannot reject or fire qualified individuals who have criminal records when the criminal history has no bearing on the individual’s fitness or ability to perform the job. This section of the Civil Rights Act prevents the use of bright line hiring and excluding individual’s with a criminal past from employment.

The Fair Credit Reporting Act went into effect September 30, 1997.  The Act is designed primarily to protect the privacy of consumer report information and to guarantee that the information supplied by consumer reporting agencies is as accurate as possible. A consumer report contains information about an individual’s personal and credit characteristics, character, general reputation, and lifestyle.

The EEOC is clear in its position on employers’ use of criminal background checks for employee hiring and retention: “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

The EEOC further suggests that criminal background check information should prevent an individual from employment only to the extent that it is foreseeable that the individual might not be trusted to perform the duties of the position with fidelity. In making a decision, the employer must consider the nature of the job; the nature and seriousness of the offense; and the length of time since it occurred.

Conducting background checks as part of the hiring process requires the employer to add a few simple steps. The employer needs to notify the applicant and receive consent to perform the background. The applicant must be made aware that they have access to the findings of the report and how to obtain copies of the report. If the applicant is not hired, the employer must notify the applicant that the reason for not being hired was the result of the background check.