SI Review: January/February 2014

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Benefit of Counsel: Check It Out

How to use background information wisely

By Timothy J. Szuhaj and Brian E. Curtis

Efficient onboarding is critical to the ongoing success of staffing companies and an integral part of the process is background checks. In April 2012, their significance to the hiring process was brought to the forefront by the U.S. Equal Employment Opportunity Commission’s issuance of its enforcement guidance on criminal background checks and the potential for such screening to “impact” minorities in a discriminatory way in violation of Title VII of the Civil Rights Act of 1964.

Individualized assessments

EEOC guidance directs that employers consider a number of varying factors when a background check indicates a criminal history, such as (1) facts and circumstances surrounding the offense; (2) nature and gravity of the offense; (3) individual’s age at the time of conviction; (4) time that has passed since the offense and completion of the sentence; and (5) any rehabilitation efforts. These factors provide employers with the necessary framework for justification of their hiring decisions, at least as far as those decisions relate to EEOC considerations.

Beyond Title VII and the EEOC Guidance, the Fair Credit Reporting Act (FCRA) and the Americans with Disabilities Act (ADA) are also important considerations for background checks in the onboarding process.

The FCRA provides job seekers with legal recourse if an employer makes a hiring decision based on inaccurate data in a background check. There are two significant components to the law. Employers must obtain written consent from any job applicant in order to conduct the background check, and if a hiring decision is made based on the background check, the source of the information must be identified to the applicant. The FCRA includes all “consumer reports,” including criminal conviction records. How background information can be used during the hiring process varies from state to state, so hiring protocols must be adaptable.

The ADA prohibits employers from using medical or disability information in the hiring process. Simply put, an employer cannot ask during an interview, or during the background check, about an applicant’s disabilities. The law covers businesses with 15 or more employees, including state and local governments, an important consideration for healthcare-sector staffing firms providing talent to public hospitals.

It is crucial for background information to be used wisely in the hiring process. As a standard protocol, a single issue in a background check should never eliminate an applicant from consideration for employment. Instead, hiring managers must view an applicant’s overall presentation and base their decision on objective details related to the job.

Documentation

For staffing placement, an agency must (1) ensure the employer provides a detailed description of the job being advertised for fulfillment; (2) create a detailed hiring matrix to determine candidate suitability for the job; and (3) evaluate the five factors in the EEOC guidance for any candidate with a negative background check and document this evaluation in detail. In this way, justification letters explaining hiring decisions can serve to protect both the staffing company and the employer from legal liability.

The justification letter should include three main components: First, incorporate a summary of the client’s job description. Second, detail how the candidate’s experience and background are matched to the essential requirements in the job description. Third, summarize your findings in the individualized assessment you performed on the candidate as a result of the negative background check, being sure to address each of the five factors in the EEOC guidance. As a final note, you should also attach to your justification letter copies of the client’s job description and the candidate’s resume/application, retaining a copy of the justification letter and supporting documentation in your internal files.

Timothy J. Szuhaj and Brian E. Curtis are with Becker Meisel LLC’s Staffing Industry Group. They can be reached at tszuhaj@beckermeisel.com and becurtis@beckermeisel.com

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