When paying an outside entity to screen applicants, you must obey background check laws, which include FCRA (Fair Credit Reporting Act) as well as state laws.
FCRA establishes legal requirements for obtaining a background report, including notice, consent and various procedures that must be followed before taking any adverse employment action based on a background check, such as withdrawing a job offer.
Background checks bring legal risks, whether they are done internally or through a service. If doing background checks internally, employers must be consistent familiar with the many different laws that apply to applicant screening, including federal and state discrimination laws, EEOC rules on background checks, data privacy laws and specific state requirements. If you are a multi-state employer, you should be clear on each states requirement. If using a background-check service, employers should make sure the vendor follows FCRA requirements. Many service providers claim to follow all applicable laws, but not all do.
Always provide notice and obtain signed consent from the applicant. To comply with FCRA, the form must be a separate document designed solely to notify applicants of the background check and need their consent. Decide in advance what will be checked and how far back you want to do. Be consistent on this with each position.
If you reject an applicant or terminate an employee based on background result, they are to receive a pre-adverse action notice. Provide an opportunity to dispute information. At the time of rejection, provide a final adverse action notice with the required language by FCRA.
Social media content is another hot topic and drawing scrutiny. If you are checking social media be sure you know what you are looking for and why. An applicant’s race, origin, age, etc. will possibly be revealed in a social media check. None of which are pertinent to an applicant’s ability to do a job. Keep in mind social media accounts can be hacked and false or misleading information posted. Can you determine what is reliable and relevant in a hiring decision?
For assistance with background check policies, procedures, or general guidance, contact CyQuest today!
Q&A:
Can I call a former employee listed on the application even if the applicant did not include them as a reference?
There is no law preventing you from calling the former employer as part of the hiring process. You can ask the applicant if it is okay to contact them, even though you are not required to. If the employee advised they don’t want to contact them, you should ask for an explanation.