How to Build a Compliant Screening Strategy

Background screening is a crucial component of the hiring process. Why you ask? Forty percent of applicants lie on their resume! Knowing who you are hiring can (1) improve workplace safety, (2) minimize legal ramifications, (3) reveal a candidate’s character and trustworthiness, and (4) help you determine a candidate’s position fit. Just as important as it is to know who you hire, it’s important to do so legally. To help, we’ve outlined a general guideline with steps to building a compliant screening strategy. 

Note: Although we go to great lengths to make sure our information is accurate and useful, every organization faces different legal bindings. To ensure your compliant screening strategy is legally accurate, we recommend consulting legal counsel. 

Step 1: Develop and refine screening policies.

Before conducting any background checks or verifications, it’s important to know what laws to abide by such as the Fair Credit Reporting Act (FCRA), the Fair Chance Act (FCA), the Equal Employment Opportunity Commission (EEOC) discrimination regulations, and jurisdictional specific regulations. In addition, recognizing the importance of accurate and compliant screening can largely impact your screening practices and policies. 

Within your screening policy, outline:

• Adjudication matrixes. Determine position-specific hire and no-hire clauses. In order to avoid discriminatory hiring, define rules and exceptions to the rules in case a background check report reveals a history that could negatively impact an employment decision.
• Fair practices. Set standards in place to remain consistent in screening practices. Screening one candidate and not another can be considered discriminatory. Conducting background checks based on someone’s race, color, national origin, sex, religion, or disability can result in legal action. 
• Considerations for further evaluation. Should a report reveal a criminal history, consider the time passed since the event, the nature and severity of the event, the relevancy of the event to the job position being sought, the overall character of the candidate, and any rehabilitation efforts made.
• Data Retention. Check your state laws to see the data retention requirements for pre-employment screening checks. Then, should an audit occur or the candidate initiate legal action, having their information on file for the required time can protect you.

Vetting your candidates goes further than just a background check, though! Consider implementing policies and practices for drug screening, I-9, e-verify, and employment and education verifications — all things Verified First expertly takes care of! And don’t forget to maintain a safe workplace by developing a plan for rescreening as well!

Step 2: Provide disclosure. Get consent.

As part of the FCRA, employers must notify applicants of pre-employment requirements contingent on getting the job. Any background checks, drug screenings, or other qualifying tests for employment must be disclosed to the candidate and consented to in writing.

Step 3: Make a contingent job offer.

Although not required in all states, a best practice is to omit any qualifying tests for employment until after a conditional job offer has been made. As part of the Fair Chance to Compete for Jobs Act, doing so helps organizations avoid discriminatory hiring practices by eliminating inquiries about a candidate’s criminal history. 

Step 4: Outsource to a third-party background screening provider.

When your candidate is ready to undergo a background check, you’ll want to ensure they’ve been provided (1) a copy of the Summary of Consumer Rights under the FCRA and (2) the reporting agency’s name, address, and phone number.

While your organization can conduct its own background checks, limitations reside. Outsourcing your screening needs better ensures compliance with the FCRA, minimizing legal ramifications should an applicant feel they were unfairly treated based on inaccurate or incomplete information reported on their background check. 

When outsourcing your screening needs, it’s imperative you stay compliant with the FCRA’s notice and disclosure requirements. While it is your responsibility to provide notice and disclosure, some providers offer employers the option to manage the adverse action notification process within their solution — making it that much easier on you. Check with your provider to see what resources they have available to their clients.

Step 5: Review the findings.

Once the background check is complete, the next step is to review the findings. During this stage, you should refer back to your policies and any screening laws outlined in the FCRA. 

Using adjudication matrices allows you to assess whether you should hire a candidate based on your organization’s hiring guidelines, outlined in your screening policy. 

Opting into a feature like this allows you to filter criminal history on a background check by defining parameters like:

• Severity of charge
• Relevancy to job position being sought
• Time limitations

This process flags candidates for further employer review who do not meet the job’s pre-employment assessment requirements, based on their criminal history. This is where you should refer back to your screening policy considerations for further evaluation.

Again, make sure that you are only considering relevant information to the job. Denying a job due to irrelevant criminal history can be deemed unlawful discrimination in some cases. 

Step 6: Provide Adverse Action Notification

Should your organization consider moving in another direction based on findings from the report, participating in the adverse action notification process is necessary before making an official hiring decision.

The pre-adverse action notice, accompanied by the consumer report and the Summary of Your Rights Under the Fair Credit Reporting Act, includes a letter from the employer to the applicant, explaining that something in the report might negatively affect an employment decision.

During your state’s predetermined time clause, applicants have the right to respond, correct any inaccuracies, and provide any supporting information, like rehabilitation efforts. 

Suppose the candidate does not meet the employment requirements or doesn’t respond within the specified timeframe, you must provide them with the adverse employment decision notice stating your decision to proceed without them.

Note: Applicants have the right to appeal an employer’s decision if they believe it was unfair. Hence why maintaining your records is extremely important!

Conclusion

Building a compliant screening strategy can be a daunting task; however, doing so with the right screening partner (not just a provider) can make all the difference! 

Part of a compliant screening strategy means screening with an approved FCRA, third-party partner, like Verified First! When comparing your options, search for a provider who keeps you in mind throughout the entire process. 

To start the process:

• Develop and refine screening policies.
• Provide disclosure. Get consent.
• Make a contingent job offer.
• Outsource to a third-party background screening provider.
• Review the findings.
• Provide Adverse Action Notification.

Interested in partnering with Verified First for your background screening needs? Let’s chat!