Should you conduct background checks for employment? California employers are understandably wary, with recent lawsuits alleging that background checks can have a disparate impact on protected groups. However, background checks can be a great resource. They provide an opportunity to learn more about potential employees and to investigate whether applicants have lied, stolen, or otherwise engaged in unacceptable behavior that may affect the hiring decision. Deciding whether or not to use them, and what types to use, is something that should not be taken lightly.
Do you know the trends affecting the use of background checks for employment?
Background Checks for Employment: Top 10 Trends
Knowing legal trends can be a great resource for employers. Understanding the latest trends can allow you to make informed decisions. Here are the top 10 background check trends and some advice for employers:
- Criminal background checks by employers have come under greater scrutiny by the EEOC. They want to ensure there is not a disparate impact on protected groups. This means they advise there should be no automatic disqualification for a past criminal conviction without a business justification. In cases of a past conviction, it is better for employers to consider the nature and gravity of the offense, the nature of the job in question, and the time elapsed since the conviction.
- Credit report checks by employers are increasingly regulated by state laws. Be sure to understand both the Fair Credit Reporting Act (FCRA) and your state regulations. It is advisable to avoid using credit checks unless there is a clear business justification related to the job in question.
In fact, the new Assembly Bill 22 (AB22) in California prohibits employers or prospective employers – with the exception of certain financial institutions – from obtaining a consumer credit report for employment purposes unless the position of the person for whom the report is sought is specified under the law. Seven other states have passed laws limiting credit report checks for employment purposes as well: Connecticut, Hawaii, Illinois, Maryland, Oregon, Washington, and Vermont. - Social media checks of job applicants are becoming more prevalent and controversial. “California has joined a couple of other states in passing a law that says ‘thou shall not ask an applicant to turn over their social media password.'” Lester Rosen explained in a recent CER webinar. There’s also a provision that makes it illegal to “shoulder surf.” In other words, employers cannot ask an employee to log in to their social media pages and then look over the employee’s shoulder to see the information.
- Automation in screening increases both efficiency and risks. For example, some credit reports contain errors. Accuracy problems are a major concern for employers making hiring decisions.
- There is an increasing level of professionalism in the industry, with a new emphasis on accreditation. The National Association of Professional Background Screeners (NAPBS) even has a new accreditation program. While there is no licensing requirement at the national level yet, many firms are going through the process of becoming accredited to gain consumer confidence.
- The prevalence of diploma mills offering fake degrees is increasing in the tight job market. “You need to be aware that you no longer need to go to school to get a diploma; you just need a computer and a printer and a credit card.” Rosen warned. Employers need to be aware of this potential for falsifying credentials.
- Lawsuits related to background checks for employment are becoming much more prevalent. This is because attorneys and consumers are becoming much more sophisticated about all the various aspects of background checks and credit checks.
- The new E-Verify laws create a complex web of federal and state rules. Employers need to be aware that laws can vary at the state and federal level. Some jobs require employers to utilize the E-Verify system; be sure to know the legal obligations in your circumstances.
- Sending personally-identifiable information outside the U.S. increases privacy and identity theft concerns. New legislation has been enacted in California on this issue: Senate Bill 909. This legislation requires disclosures to be made to consumers before their personally-identifiable information (such as social security numbers) is sent overseas.
- Self background checks are being proactively conducted by job seekers. Job candidates may be able to correct errors on reports if they are aware of them. They may also already know what an employer will see if the employer conducts a background check.
By understanding the trends, employers can know what to expect and can use this information in making decisions about whether to conduct background checks for employment.
The above information is excerpted from the webinar “Background Checks in California: Know the Rules of the Road Before Getting on the Freeway.” To register for a future webinar, visit CER webinars.
Lester S. Rosen, the founder and CEO of Employment Screening Resources, is a consultant, writer, and frequent presenter nationwide on pre-employment screening and safe hiring issues.
What about the use of third parties to conduct background checks? Are those on the rise as more employers try to shield themselves from liability? Would that even work?
What about the use of third parties to conduct background checks? Are those on the rise as more employers try to shield themselves from liability? Would that even work?