Background Checks Pose Increasing Compliance Challenges

According to a recent survey conducted by US-based employment law firm Ogletree Deakins, background checks have rapidly become one of the biggest sources of compliance woes for businesses in recent years. A changing regulatory environment and highly litigious individuals have created challenges for employers who simply want reliable tools to protect the public and their companies from harm. Some businesses have even decided to forego or otherwise reduce the amount of screening they do.

Where are these background check compliance concerns coming from, and what can employers do to continue using these tools without unnecessary legal risks?

Beware of Any Deviation in FCRA Disclosures

The FCRA's "standalone disclosure" requirement has been a frequent source of headaches for employers, especially in recent years. The law states that employers must provide a clear, standalone disclosure notice to applicants before using a background check. Unfortunately, what exactly "standalone" means has been a subject of debate and differing interpretations in the courts.

Because the FCRA provides for per-violation damages, class-action lawsuits have sprung up over even minor and accidental inclusions on the disclosure page—and they've proceeded to trial. Businesses must be 100% sure that the only thing they provide is the standard language required by the FCRA.

Ban the Box Laws Continue Expanding

The first "ban the box" laws merely required employers to stop asking about criminal histories on job applications. However, an increasing number of jurisdictions have adopted laws restricting how, when, and what you can ask about criminal history—not only on the initial application. Employers must take care to remain aware of changes in their local laws and develop plans to adhere strictly to the letter of the law. 

Information Restrictions Hamper Some Searches

Some states, including California, have moved to strike identifying information from criminal information, such as birthdays. Michigan has made similar moves. These moves could make effective background checks almost impossible in these areas—although legislative efforts to carve out exceptions and better define the rules are still ongoing. Nonetheless, employers in these states should closely monitor the progress of such legislation and develop action plans to continue safe hiring in the future. 

Know Your Compliance Plan

With increasing complexity in regulations and a rise in opportunistic class action lawsuits, employers must be wary of how they use background checks today. However, that does not mean there is a need to abandon them, as some employers have. Thorough pre-employment vetting can still be agile and informative within the boundaries of the law. 

Take this opportunity to review the rules and guidelines you've established for how your business uses background checks. If you've never formalized such a policy, now is the time to do so—and to start staying up to date on the latest policy changes in your jurisdiction. With an intelligent approach, remaining compliant and avoiding potentially dangerous hires is still possible.

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Michael Klazema

About Michael Klazema The author

Michael Klazema is the lead author and editor for Dallas-based with a focus on human resource and employment screening developments

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