US Women Magazine August 2014 Vol 1 Issue 1 | Page 39

Human Resources

ut Background Checks
on May Actually Increase
any’s Liability

•
The nature of the work to be performed or being performed;
•
Time since the conviction;
•
Age of the candidate/employee at the time of the offense;
•
Seriousness and specific circumstances of the offense;
•
The number of offenses;
•
Whether the applicant/employee has pending charges;
•
Any relevant evidence of rehabilitation or lack thereof;
and
•
Any other relevant information, including information submitted by the candidate/employee or reasonably
requested by the company.
Employers must also make sure they are treating everyone
equally. The EEOC considers background checks based on a
protected class, such as race or national origin, to be illegal.
The EEOC also does not want employers to have a blanket
policy of performing criminal background checks on all applicants. Instead, the employer must be able to show there is
a business necessity for the check. For example, it may be difficult for an employer to prove a business necessity to perform

a background check on an applicant for a position as the
company’s receptionist or for someone who will only perform general labor for the company. Conversely, it is much
easier to show a business necessity in the event the employee will work in a customer’s residence or will handle
money for the company.
FCRA Processes
As mentioned above, the FCRA has strict processes that
must be followed when employers use third party credit
reporting agencies to perform background checks on applicants or existing employees. Applicants or employees
must be given separate written notices concerning their
rights under the FCRA and that the employer may use
information in the report that could affect their employment. The employer must also obtain written consent
from applicants or employees to perform the background
checks.
In the event the resulting background report reveals
information that may affect the employability of an applicant or existing employee, the employer must provide
the applicant/employee with what is commonly referred
to as the “Pre-Adverse Action” notice. This notice informs
applicants and employees that their background reports
contain derogatory information that may affect their
employment. A copy of the background check report and
also a form entitled “A Summary of Your Rights under the
Fair Credit Reporting Act” must be included with the PreAdverse Action notice. The purpose of the Pre-Adverse
Action notice is to provide an applicant or employee with
the opportunity to contact the company that performed
the background check to request its correction in the event
the report contains information the applicant/employee
believes is false.
If the employer ultimately decides to take an adverse
action (not hire the applicant or terminate or take some
other adverse employment action against an existing
employee), the employer must provide the applicant/employee with a second notice, commonly referred to as the
“Adverse Action” notice. This second notice: