Article written by The legal newsblog
When you’re making a hiring or promotion decision as an employer, it’s common to concern yourself with more than just on-the-job performance. With an increase in job duties comes a more responsible employee. The act of inquiring isn’t illegal, but how you inquire and what information you obtain can put you in some hot water. While state laws will differ, this guide should help you understand the basics of how you use a criminal background check for employment.
Before you ever gather information, you have to begin the process with the knowledge that you intend to be fair to everyone. You may not discriminate based on race, sexual orientation, religious beliefs, disabilities or family history. You also can’t discriminate based on age, so avoid questions that directly tackle these issues. Pre employment checks almost never involve genetic information, except in extremely rare circumstances.
If you’re in doubt, make a conditional job offer and leave it open to address the concerns you have.
Using the Information You Obtain
Any of the information you obtain through instant background checks must be used in accordance with federal law. That means working hard to apply the same standards to everyone. You’ll notice that’s repeatedly emphasized by the Equal Employment Opportunity Commission, and violations carry steep penalties.
Be prepared to make exceptions for what you find, especially if it’s common to a particular race or ethnic group. For example, you cannot discriminate against people with a certain criminal record if that policy is found to disproportionately affect different ethnic groups.
If you must make a decision to fire or demote based on a background check, the FTC has certain regulations you must follow as well. The employee must receive a copy of the report that you used to make the decision, along with the statement of rights you’ve received when you purchased the report. The applicant must be told, either verbally or in writing, why he or she was terminated and be presented with the address and phone number of the company that provided the report. This is basic protocol that allows the employee some cause to try and dispute the report’s findings.
You must hold these records for a period of at least one year, but may hold them longer under certain circumstances. Once you’ve used the information, and that period has passed, you must use a secure method of disposal to erase the records.
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