Last Updated on September 3, 2020 by G. T. HR

Are you guilty of these background screening mistakes?

Have you found yourself believing that you have found the perfect candidate only to discover that there was some information hidden? This is often very common and in the rush of recruiting and hiring, it can be easy to miss important background information details that could impact the compliance of your company. Don’t fall victim to these background check mistakes.

1. Excluding vendors, subcontractors and gig workers from background screening process 

Much like traditional employees, these individuals often have access to an organization’s clients, resources and equipment.  Unfortunately, contingent workers have proven to be a security risk  in many organizations, resulting in high legal costs and devastating consequences to the company’s reputation.  The screening process for these workers should be as  comprehensive as for any employee engaged to represent your organization.

2. Only running pre-employment screening checks

Consider ongoing monitoring.  HR professionals need to consider that conducting a single background check only provides an employer with a “snapshot in time”.  Ongoing, continuous monitoring helps maintain a safe workforce and mitigates serious risk. Some industries that benefit from this include manufacturing, medical, and financial, just to name a few.

3. Relying on Google to tell me about my candidate

You won’t want to count on google for decision making on your potential employees.  The accuracy of social media accounts is questionable and in some states, relying on social media for your hiring process, can put you at legal risk.  Professional background screening companies are obligated to comply with strict FCRA regulations, which means the information you receive is appropriate to use in the hiring process and has been verified to actually belong to your candidate.

4. Automatically disqualifying anyone with a criminal record

When a criminal record is uncovered during a background check, employers must use caution when making the decision to disqualify that applicant.  To remain in compliance with EEOC recommendations, employers should conduct an individualized assessment, which considers relevant factors including: the nature and gravity of the offense, the time that has passed since the offense, and the nature of the job.  Additionally, there are numerous state and local laws that require an individualized assessment.

5. Avoiding policy changes in regards to medical marijuana

2020 started with  33 states allowing  medical marijuana use.  If you are an employer that is drug testing and you haven’t recently reviewed how to handle legalized marijuana use in the workplace, you should be aware.   There are an increasing number of state laws prohibiting discrimination against workers who use medical marijuana.  Additionally, Nevada and New York City are leading the way in passing laws that prohibit pre-employment marijuana screening.  Of course, there is a lot of “grey area” that provides exceptions for safety sensitive positions including drivers and caregivers.  Employers should be looking at job positions to make sure that marijuana drug testing is appropriate and not in violation of state discrimination laws

6. Not considering fair pay laws in your hiring process

An increasing trend amongst state and local governments is to prohibit employers from asking about salary history information.  Currently there are 17 statewide bans and 20 local bans restricting employers’ access to salary information.  HR professionals should be looking at current policy and consider removing questions related to salary and increasing pay transparency. Partnering with a background screening provider such as MyHRScreens  can also make staying compliant less intimidating

7. Having employees check a box on your application to let them know that you are going to be running a background check

2019 saw a record high number of FCRA lawsuits.  FCRA violations typically result in class action lawsuits and can carry multi-million dollar settlements.  It is essential for organizations to provide candidates with a stand-alone disclosure form stating that you are going to be performing a background check on an applicant prior to conducting any background checks. Additionally, applicants must complete an authorization form that permits you to conduct a background check on him/her. It is essential to have a valid signature on this form prior to beginning the background check process.

8. Not letting candidates know why you are not going to be hiring them (particularly if it is due to information uncovered in a background check)

Taking the time to notify candidates about your decision not to move forward is an FCRA requirement if the decision is based on information uncovered during the background check process.  The FCRA requires a two-step Pre-Adverse Action/ Adverse action process.  In the first Pre-Adverse Action step, the applicant must receive notification that the employer may not be extending an offer due to some piece of information found in the background check.  The applicant must also be provided with a copy of his/her report as well as a Summary of Rights.  Employers must allow the applicant a reasonable amount of time to dispute the findings, typically defined as five business days.  If the applicant does not dispute the information, and the decision not to hire remains, the employer must send a second Adverse Action letter, a completed report, a Summary of Rights, and your CRA’s contact information.