Hiring in an Age of Changing Background Rules

By Michael Klazema on 8/13/2019

The world of pre-employment background checks is changing. Employers used to be relatively free to conduct background checks how they wanted and when they wanted and freely reject candidates whose backgrounds showed criminal activity. However, as background check rules evolve, employers must think more carefully about when and how they implement criminal background checks as part of the pre-employment screening process. 

There are several pieces of legislation that employers need to remember as they plan their employee vetting policies. For instance, many cities, counties, and even states now “ban the box,” a practice that requires removing questions about criminal history from job applications. In some areas, these laws also require employers to delay criminal background checks until after they have conducted a first interview or made a conditional offer of employment. 

So far, these practices are not enforced nationwide. However, it has become an important part of the hiring process for employers to monitor their local laws to check if 1) there is a ban the box ordinance currently in place and 2) if ban the box legislation is pending. 

There are other laws and requirements to abide by as well. The Fair Credit Reporting Act dictates how employers notify candidates about background checks, gain permission to run those checks, and share information about background-check-related job disqualifications. The Equal Employment Opportunity Commission bars employers from implementing blanket policies regarding criminal history. Instead, employers must consider candidates’ criminal histories on a case-by-case basis, assessing whether certain convictions are legitimately relevant to the job at hand.

These laws and limitations don’t just apply to criminal background checks. In some parts of the country, it is illegal for employers to run credit history checks on their candidates. The idea is that a person’s credit is not a reasonable metric to assess character or ability—even for positions that involve financial tasks. Many states bar employers from considering arrest histories as part of the employment decision-making process. In Illinois, Governor J.B. Pritzker recently signed a bill into law that prohibits employers in the state from asking questions about salary history. The legislation, House Bill 834, was written with the argument that questions about salary history are a barrier to solving the wage gap between men and women.

More laws and ordinances than ever are limiting what employers can ask candidates, how they can ask it, and when. Those limitations extend to background checks whether you are running a single education verification check or a national background check for criminal history. How can employers respond to these requirements? 

The best strategy is to take a defensive stance. As you plan a background check strategy for your business, know which laws are in place—nationally, state-wide, and in your city or county—that apply to you. From there, design a background check policy that complies with each law and requirement to the letter. Compliance may feel like a hassle, but focusing on it now will save you from potentially costly complaints or lawsuits down the road. Partner with a background check provider that understands the importance of preventing risk and maintaining compliance while hiring safely.



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