Has your company decided yet whether it will conduct criminal background or credit checks? If you are already using that tool as part of your job screening process, are you keeping up with legal developments in every city, county or state where you do business to verify whether “ban the box” laws are being considered? Is your company a government contractor? If so, are you aware that 100 members of the U.S. Congress support legislation to apply “ban the box” to government contractors?
The background check landscape continues to evolve and change. There is intense scrutiny at the state and local level, as well as in Congress, at the U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission, which enforces the Fair Credit Reporting Act (FCRA) and the very strict notice and documentation requirements in that law. As we have written before, staying on top of the legal requirements and restrictions, and the variations among them, can be daunting. For example, the District of Columbia and two neighboring Maryland counties implemented criminal background check legislation in the last six months. While the laws share many similarities, each identifies the number of employees required to be a covered “employer” differently: 11 or more in D.C.; 15 or more in one Maryland county; and 25 or more in the other. The D.C. law also requires that a company have a “legitimate reason” to rescind a job offer and mandates that the company consider six specific factors in order to make that determination. Confusing enough?
Once you decide to utilize background checks, the FCRA imposes very strict requirements, including about how to disclose to an employee or job applicant that the employer will obtain a consumer report, and how to obtain the person’s consent to perform the background check. The rigid FCRA requirements have become fertile ground for litigation, including class actions seeking statutory penalties of $1,000 per violation of the disclosure and consent provisions of the statute.
How do you navigate these treacherous waters? If you decide to incorporate criminal background or credit checks in your job application process, we recommend several steps to help minimize your risk.
Background checks can be used effectively to screen for information that you, as a responsible employer, will want to know about a job candidate. If you elect to take advantage of the benefits they provide, be aware of and take steps to avoid the potential problems and hot spots that go with the territory.