How many years back into the past can a criminal background check go? What is the difference between an investigative consumer report and a regular consumer report? Can you have different screening processes or factors that warrant disqualification for different positions? These are just a few of the questions that were asked by participants in a recent BLR webinar. Sara Hutchins Jodka gave us answers to these and more below.
Q. If you notify an applicant that the job offer is contingent upon a drug test, background test, etc., is that a violation of EEOC guidance? Does it put us at risk? We do not require an applicant to advise whether they’ve had convictions on the application prior to receiving an offer.
A.The EEOC has a problem if you have a blanket policy stating you won’t hire anyone with specific factors (such as criminal convictions) in their background, without giving an individual a chance to explain their specific situation. So, if you say your offer of employment is contingent upon you passing it, you’ve already gotten them to the door and given an offer of employment—now they just have to pass the other tests. Now, if a criminal conviction comes up, you’ll probably need to do the individualized assessment to make sure that you’re properly screening them under the Title VII reasons (business necessity and job-relatedness).
But having a policy like this will not be a violation on the face of it. Just be cautious about how you tell someone they’re screened out if something negative is discovered. The EEOC is looking for policies that exclude a number of people based on a blanket consideration—this policy does not seem to be this case.
Q. We are a financial services company with multiple locations. Can we go back a different amount of years in looking for theft, bribery, trickery, deceit, etc.? For example, could we go back a different number of years for different positions—for employees who have access to different types of information?
A.I don’t see why that would be a problem, because that’s a form of individualized assessment, and you’re basing it on business needs, and your clients all have different business necessities. You can certainly say that specific types of information will be more relevant for some positions (or employers) than for others. I don’t see a why a different policy for different companies or positions would get you into any problems so long as it is related to the business necessity, and what you’re looking for in those applicants is reasonable for the positions you’re hiring. As long as it’s narrowly-tailored, I don’t think it will be a problem with the EEOC.
Q. Is there a maximum number of years that you can look back when doing a background check?
A.The FCRA does not place a limit on criminal convictions, such as for embezzlement or corporate espionage, etc., so you won’t run into problems in that regard. However, if you’re looking for something like a bankruptcy, you can’t look back further than 10 years—even if it’s a financial position in which a bankruptcy would be a disqualifier, you still can’t look further than 10 years. However, a criminal conviction won’t have a time restriction.
Either way, you still need to be able to tie it to the business necessity. I would encourage you to have individualized assessment factors in place, even when you already have business necessity and job relatedness. You need to assess whether the findings are truly relevant, even if they go against your criteria in general, especially if you’re going back a long time (as the information could be deemed less relevant since so much time has passed).
Q. Is checking someone’s education considered to be an investigative consumer report or a regular consumer report?
A.The difference between a consumer report and an investigative report is who you’re asking. If you’re going through a credit reporting agency or just doing an education screen and you’re running a standard report, that’s a consumer report. However, if you are asking for specific information, such as calling a reference or professor, then it’s investigative. It’s not the information requested that determines whether it’s a consumer report or investigative report; it matters who you’re getting the information from.
Q. Can you request an investigative report for only certain positions? By doing this, will you be open to any type of litigation?
A.You can do an investigative report for specific jobs. In fact, it’s recommended. I recommend not doing it for every job, and only doing it for certain jobs—the ones that have a high enough level of responsibility to warrant it, such as financial or executive-level positions. I recommend doing it in those instances to get a more thorough background investigative check. Then be sure you comply with the FCRA rules regarding those things. That also helps you with the individualized assessment.
Q. I believe we have a robust assessment process; I review every criminal record that comes back and look at it on its own merit. I’m seeing a lot of deferred judgments, however, and I’m not sure how to handle these. For example, when I’m trying to weigh relevancy, patterns, and recency, yet I see a pattern of a behavior but without criminal actions, how should I react to these? There might be arrests for violent crimes, substance abuse, theft, etc.
A.The EEOC doesn’t really want arrests being used. However, you can use them if you’re really looking at the overall pattern. If you see the pattern, the EEOC says you can use this information in some instances. If it’s expunged, that’s a different story. I would encourage you to check out the EEOC opinion letter on the topic.
For more information on conducting legally-compliant background checks, order the webinar recording of “Conducting Legally Sound Background Checks: New FCRA Requirements and EEOC Guidance Explained.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Sara Hutchins Jodka of Porter Wright has significant experience representing employers in all facets of employment-related litigation. Ms. Jodka has drafted company handbooks, workplace policies, and more.