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It is essential for employers to be compliant with laws that affect hiring and background screening. Here are some best practices to implement for the New Year.

1. Ban the Box

We've seen numerous state and local Ban the Box laws over the last few years. More are likely to be passed in 2018. These laws differ from place to place, but most contain the same basic concepts.

Best Practice Tips:

• Remove questions about arrests and/or convictions from your job applications.
• Hold off on running criminal background checks until after you've conducted an interview. To be extra cautious, wait until a conditional job offer is extended.

2. Carefully Consider Convictions

In the past, individuals with arrest records or criminal convictions were unlikely to receive consideration for any job. More recently, a variety of laws have been created to help people with minor records obtain employment.

Best Practice Tips:

• If an applicant has a conviction, take time to evaluate the offense. Consider how serious it was, how long ago it occurred and whether or not it is relevant to the job. Some states will have specific guidelines on how to review convictions.
• When denying employment due to an applicant's criminal history (or based on other information learned after a background screening), go through the proper adverse action process. Start by sending the person a pre-adverse notice along with a copy of their background check and a summary of their rights under the FCRA. Give the individual time to review these documents and file a dispute if warranted.
• If no dispute is filed, then proceed with the adverse action (which includes providing notification, contact information for the Consumer Reporting Agency that prepared the background report and a second copy of the rights under the FCRA summary).

3. Do Not Consider Records That Have Been Expunged

Some states are establishing easier guidelines for expunging certain types of arrest and conviction records. Once a record is expunged, it cannot be included on a background check or used to make a hiring decision.

Best Practice Tip:

• Work with a consumer reporting agency that only provides reportable criminal records.

4. Use a Standalone Disclosure

We've seen numerous lawsuits based on claims that an employer's disclosure document included waivers or other content that is not permitted.

Best Practice Tips:

• Make sure your disclosure is a simple, standalone document.
• Do not include any additional content on the disclosure.

5. Don't Ask About Salary

There is a growing movement to forbid employers from asking applicants about their previous salary. The goal is to prevent wage discrimination based on gender, nationality or other factors.

Best Practice Tips:

• Don't ask applicants about their current or previous salary.
• Ensure that employees who perform equal duties receive equal compensation (some exceptions can be made based on the location of a job when cost of living is a factor).

6. Make Sure the Data You Send and Receive is Protected

Recent data breaches have created a whirlwind of concern about protecting consumer's personal data.

Best Practice Tip:

• Partner with a background check provider that has strong protections in place, such as an annual SOC 2 audit.

7. Implement Anti-Discrimination Policies

Make sure your policies do not inadvertently discriminate against applicants or employees.

Best Practice Tips:

• Familiarize yourself with anti-discrimination laws established by the Equal Employment Opportunity Commission.
• Document your hiring and screening policies and make sure they show the steps you take to avoid discrimination.
• Establish and maintain policies that are fair and consistent for everyone.

Follow Our Blog

We regularly report on laws that affect employers. Watch for our new blog entries every Tuesday and read about important topics such as compliance, hiring and background check best practices.

Our team wishes you a happy and prosperous 2018! If you have questions about how we can help you build strong teams and make informed hiring decisions, please contact us today.