On Nov. 18, 2019, the Equal Employment Opportunity Commission (EEOC) settled a race discrimination lawsuit with a nationwide retailer that challenged the employer's use of criminal history for employment purposes. The hiring process can vary by employer and industry, so it's vital that employers determine what is needed for their background check program.
In this particular case, the EEOC claimed the employer's use of a criminal history check resulted in a disparate impact against minority workers. As a result, the EEOC required the employer to pay $6 million, as well as hire a criminologist if it continued to consider using criminal history checks as part of the pre-employment process. To avoid lawsuits and fines and ensure that their current background check policy is up-to-date, employers should work proactively.
A criminal history check is one of many background screening solutions employers can use to help them determine a safe hire. This check reveals detailed information about an individual's county, state and/or federal criminal history. Each record will vary by the type of information that is searched for and the results it returns. With the knowledge of an applicant's criminal history, an employer can better understand if the applicant would make a good fit for the company. Criminal history checks benefit employers by reducing risk; protecting an organization's assets and reputation; reducing incidents on the job; and preventing lawsuits, fines and fees.
To further protect the company from potential risks and fines, employers should follow these best practices when conducting criminal history checks for their business:
- Create and implement a clear and concise written background check policy.
- Know and understand the laws regarding the use of criminal history information and train managers, HR, etc. accordingly.
- Eliminate policies or practices that would exclude someone from employment based on a bright-line rule (any criminal record or felony).
- Maintain confidentiality when handling an applicant's or employee's criminal history information and only use it for the purpose for which it was intended.
In addition, employers must also abide by the rules of the Fair Credit Reporting Act (FCRA) when running background checks. In order to be compliant, the FCRA requires that an employer meet the following:
- Permissible purpose: An approved reason under the FCRA to conduct a background investigation (e.g., credit, employment, tenant screening, insurance, government license, child support enforcement or court order).
- Disclosure: Before ordering a background check, employers must provide a disclosure in a clear and conspicuous written document.
- Authorization: The employer must obtain written authorization from the candidate consenting to a background check.
- Adverse action: Employers must follow the adverse action process before denying employment based on the background report. Despite the law, many companies fail to send adverse action notices. It's important that your HR and compliance department remain up-to-date on all hiring requirements and procedures to avoid violations and/or lawsuits.
Third-party administrators such as DISA offer a variety of background check solutions to enhance your employment screening process. When creating a background screening program, it's important employers understand exactly what is needed for the positions they are hiring for, as well as any industry-specific requirements. DISA's unique service offerings include customized product packages, individual products, online ordering, automatic renewal notices and applicant entry to help you create a customized program to fit your needs.
For more information, visit www.disa.com, call (800) 752-6432 or email sales@disa.com.
