We're living in a more litigious society than ever and employers are at risk for violations and penalties if they're taken to court. More laws are being written to protect job applicants from discrimination in the job market, especially as it relates to criminal background checks. Human resources and hiring managers must individually assess each candidate thoroughly and accurately in order to make hiring decisions. The actions before and after the decision to hire (or not) must also follow up-to-date standards and regulations.
If employers can obtain accurate data and stay compliant with the law, their litigation risk is lessened.
Changes in human resources practices can affect employers' ability to hire the right candidate for a position. New digital human resources trends offer a faster way to recruit and interview applicants but resume fraud is on the rise. Companies are hoping to reduce the chance of hiring someone who doesn't fit with their company culture and at the same time, reduce the risk of negligent hiring claims. Background screening seems to be a viable option, however, hiring managers want answers quick and cheap.
In an article published on Human Resource Executive Online, VeriFirst President Ryan Howard states, "Data accuracy and turnaround times. Those two things keep clients up at night." With a competitive job market, employers are afraid to run the risk of missing out on an applicant and will sometimes cut corners, or opt out of accurate background checks altogether. Rushing the hiring process can get employers into trouble, either with workplace violence, negligent hiring claims or FCRA class action lawsuits.
Highly Regulated Background Checks
HR departments should regularly review their hiring practices, including educating themselves on the current employment laws in their jurisdiction, at the city, state or federal level. Obtaining and verifying information on job applicants must adhere to a select set of rules dictated by the Fair Credit Reporting Act (FCRA). Before obtaining a background check, hiring managers must have an applicant-signed, separate consent form authorizing the employer to run the screening. Employers must also notify applicants after receiving negative results in the manner mandated by the FCRA, a two-step process called "adverse action".
The applicant then has the opportunity to dispute the findings or to verify its accuracy. Howard reiterates in the Human Resource Executive Online article, "In addition to being required by the FCRA, that two-step process also helps protect the employer if the record-check contains an error. Giving the applicant a real chance to correct mistakes pays off. If it goes the way it should, litigation risk is minimized."
Again, hastening the process means that employers may choose not to hire someone whose background check revealed negative results. If those results are not accurate or incorrect in any way, that applicant may seek litigation against the employer.
Choosing a Screening Partner
Another way for employers to mitigate the risk of a lawsuit is to work with a reputable screening partner. There are many background check companies flooding the market that are offering "cheap" and "fast" results. Hiring managers must remember - you get what you pay for. When choosing a background screening partner, employers may go for the quick and inexpensive option but that doesn't guarantee compliance. Some other things employers may notice include:
- Inaccurate data
- Lack of customer service
- Mistakes during the screening process
- Longer hiring process due to incomplete or incorrect data
- Higher cost of hiring due to turnover
- Higher risk of litigation
There is no single source of information for screening companies to turn to. Even the FBI fingerprinting database does not contain the most recent and accurate data. A screening partner must be willing to work with an employer to provide access to any data needed to make a hiring decision and they must work with the understanding that their client wants the data quickly.
Once employers have a clear understanding of their applicant's background, they must then assess whether a criminal background would inhibit the applicant's ability to do the job or jeopardize the security of other employees and customers. In order to properly assess the applicant, it is often helpful for HR managers to rely on a decision matrix to determine which criminal convictions would lead to a no-hire decision. Having this matrix available lessens the likelihood that there will be discrimination against the applicant.
Accurate and compliant background checks, combined with individual assessments of job applicants, can help employers to make the right hiring decisions for their companies. It may be more time-consuming to obtain complete data, follow FCRA guidelines and meticulously assess each candidate, but employers are left with little choice if they choose to remain out of a courtroom.