Make a Commitment to Background Screening Compliance and Efficiency in 2013

Robert Capwell

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2013 best practices for background screeningIn retrospect, 2012 was a year of slow economic growth, tighter budgets, state law changes, revised EEOC guidelines, and the stark reminder of workplace and public violence.  These concerns and challenges are at the forefront for every HR and Security Professional responsible for talent management, workplace safety, and security.  A new year and perspective brings an opportunity for companies to reassess current policies.  Enhanced security, leveraged technology, return-on-investment, and compliance are always key factors that should be reassessed on an annual basis and are critical aspects of a comprehensive screening program. 

At EBI, we are committed to the highest level of security, integrity, accuracy, and compliance in the products and services we deliver to our clients.  Our industry experts work diligently to keep you informed of background screening, drug testing and occupational healthcare changes throughout the year.  Through our weekly blog posts, articles, and legislative alerts, many of our clients have found it easy to stay up-to-date as the information we provide is in real-time.   With the start of a new year, we would like to point out a few key areas that employers should revisit as a matter of best practice.

A Commitment to Completeness and Accuracy
Conducting a comprehensive and accurate background check should always be a matter of policy and best practice within any screening program.   Using only limited information from an online database does not sufficiently cover employers from the risks of negligent hiring or retention litigation.   A criminal records database search is an excellent tool that can be used to fill in the gaps; however, it should never replace a comprehensive court search of where a subject has lived, worked, or even went to school.  Fast and cheap won’t cut it when you are trying to achieve a high level of due diligence.

Employers should demand that their screening vendor provide current and accurate information when utilizing all data sources.  Section 607 of the Fair Credit Reporting Act (FCRA) requires that consumer reporting agencies follow reasonable procedures to assure maximum possible accuracy of the information provided within a consumer report.  In most cases, only the original reporting court of jurisdiction will have the most current and complete criminal record information.  In addition, subject identifiers are limited in many electronic databases as they have been removed due to concerns of identity theft, which leaves companies with incomplete information.  Without proper subject identifiers, your screening vendor cannot ensure that the information reported is actually for the right candidate, especially if it involves a common name.

Be Consistent with Your Screening Program
Having a documented, consistent, and well thought-out screening program will mitigate risk levels and the potential of discrimination as it relates to candidate evaluation.  You should never pick and chose screening components at random or based on a hunch.  Evaluate your screening program based on job function and be consistent, especially when dealing with similar positions.  Job functions that bring an elevated level of risk to fellow employees or even the public should undergo a more in-depth screening.  In addition, employees dealing directly with the elderly, mentally challenged, or children and/or those working intimately with others should be screened more intensely as well.

The location and/or the employee’s access to information should also play a key role in deciding your level of due diligence. Employees working in highly secured or safety sensitive areas and/or accessing confidential information, cash, or credit information provide a specific set of risks that a screening program should cover.  In addition, a candidate’s prior job performance, education, skill set, and experience should be properly vetted based on corporate need and job requirements.   Consistency is always a benchmark when minimizing risk and assessing candidates.

Reduce the Potential of Employment Discrimination
In April of 2012, the Equal Opportunity Employment Commission (EEOC) approved guidance on the “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”  Employers are urged to take a fresh look at their job applications and assessment protocols when dealing with arrest and conviction information in hiring decisions.  Employers need to understand that the EEOC’s guidance does not prohibit the use of such information as part of their pre-employment screening process; however, employers will need to take a much closer look at their procedures when inquiring about and assessing the use of arrest and conviction information as it relates to job-relatedness and business necessity.  A neutral or an across-the-board assessment policy for all candidates could leave you open to a potential discrimination lawsuit.  Evaluation of arrest and criminal conviction information should be consistent, job-related, and a matter of business necessity, as well as assessed individually to avoid potential discrimination.

In December of 2012, the EEOC released its Strategic Enforcement Plan for 2013.  The plan outlines several initiatives that are of importance to the EEOC.  Eliminating barriers in recruiting and hiring is a high-level initiative of the agency.  Their focus for this specific initiative includes facially neutral recruiting and hiring practices that adversely affect candidates based on race, ethnicity, religion, age, gender, and disability.  Recruiting, restrictive application processes, and tools such as pre-employment testing and background checks will continue to be a focus for the agency.

Employers need to be aware of the initiatives of the EEOC as they may have an effect on your current screening program.  EBI will keep you informed of any specific initiatives or agency updates as they progress throughout the year.

Revisit State Specific Compliance Mandates
State legislation, as it relates to the screening industry, is ever-changing, and HR professionals need to stay on top of legal changes for proper compliance.  Over the past year, states have changed specific notifications and policies on the use of criminal records, as well as made restrictions that limit or even prohibit the use of credit information for certain positions.  A sluggish economy and tighter state budgets have changed the focus of state lawmakers to look for ways to cut costs which have a profound effect on employers and pre-employment and post-hire screening solutions. In some cases, state legislation has set tighter controls on illegal immigration and the use of state mandated e-verify programs.  There has also been a focus on the reduction of inmates in state prisons along with ex-offenders re-integration into public and private sector jobs.  As a result, there has been an increase in the adoption of laws addressing the exclusion of inquires about prior criminal history on job applications.  Many of us know this as the “ban-the-box” initiative being adopted at the city, county, and state levels.  This trend can be a compliance nightmare.

If that is not enough, states passing medical marijuana laws continue to be on the rise, so revisiting your drug testing program certainly makes sense to ensure proper state compliance.  Employers must be vigilant in keeping up with ever-changing laws to stay compliant.  Taking a fresh look into these areas on a state basis is worth the legal legwork and appropriate throughout the entire year.

Build Efficiencies into Your Screening Program
The age of a paperless process for recruiting, talent management, screening, and on-boarding is here for employers to capitalize on and optimize business efficiencies.   Electronic job-boards, paperless applications, and secure candidate portals provide a seamless, confidential, and efficient way to gather and exchange sensitive candidate data.    The days of paper forms, chasing down an applicant for a required signature, or manually sending sensitive information to your screening provider is over as many tools and resources have been created to streamline these processes.  In addition, obtaining a candidate’s personal data outside of the application process can assist in providing legally required federal, state, or even international disclosures forms to be served up automatically to ensure you capture the right information up-front and stay compliant while information is exchanged in real-time and in a secure manner.

You should evaluate your entire application, screening, and on-boarding process to identify for further efficiencies, such as a consolidation of services to one vendor verse multiple vendors to reduce reconciliation time with invoices.  Working with an integrated screening provider that can meet all of your background screening, drug testing, and global screening needs can save you substantial time.     Efficiency is key during a time when we all must do a lot more with less staff and tighter budgets.

It’s Worth Taking a Fresh Look
Taking a fresh look at your overall screening program can help keep you out of court, reduce hidden risks, decrease costly turnover, and ultimately create a positive candidate and HR experience while providing significant ROI to your screening program and bottom-line.  Contact EBI today and let one of our industry experts share their knowledge and demonstrate how the use of SMART Technology can ultimately keep you compliant and build critical efficiencies into your screening program.

Employment Background Investigations (EBI) works with employers globally to provide a full range of comprehensive and legally compliant employment background check, drug testing, occupational healthcare, and electronic form I-9 solutions.  Our "Just One Solution" suite of services will help reduce the risks and liabilities of a bad hire!  EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local, and international mandatory requirements.  EBI is not providing legal advice or counsel and nothing provided in this document should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.

Background Checks, Drug Testing, EEOC & FCRA

Robert Capwell

Posted By: Robert Capwell

EBI’s Chief Knowledge Officer, Mr. Robert E. Capwell, is considered one of the leading experts in the background screening industry with over 22 years of experience in the field. Mr. Capwell was a contributing author of the second edition of the ASIS Pre-employment Background Screening Guidelines and has written numerous articles and whitepapers for various publications including a periodic column on background screening for The Society for Human Resource Management (SHRM) Online. He has been quoted in The Wall Street Journal, Human Resource Executive Magazine, Entrepreneur Magazine, and several HR-related publications. Mr. Capwell speaks regularly to industry colleagues and HR Professionals both nationally and internationally.

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