Background Screening Compliance Procedures
HireSafe is proud of the long-term relationships we maintain with our clients. They've come to depend on the quality and efficiency of our services and they rely on our people - from customer service to technical support to compliance as to avoid lawsuits, our people are always finding new ways to meet each company's unique employment background check and drug screening needs. For these reasons, we think of ourselves as a resource for employment screening and hope you view us that way as well. Begin with reading What Employers Need to Know
Personal privacy issues are foremost in the employment background screening industry as regulatory bodies issue rulings and legislation designed to protect consumers' rights. Here's a list of just some of the industry-governing Acts, organizations and laws which we comply with:
The Federal Fair Credit Reporting Act (FCRA) is designed to protect individuals by promoting accuracy, fairness, and privacy of information in the files of every Consumer Reporting Agency (CRA). Most CRAs are credit bureaus that gather and provide information about individuals - such as if they pay their bills on time or have filed bankruptcy - to creditors, employers, and landlords. Companies that perform pre-employment screening services, such as HireSafe, are also governed by the FCRA, as are the employers that use HireSafe's compliant background screening services.
HireSafe provides FCRA compliance information and online templates of all letters and forms necessary to comply with FCRA employment background screening requirements, including:
- Applicant Disclosure and Consent forms
- Adverse Action Letters
- Summary of Consumer Rights
In May, 2012, the EEOC updated their that disparate impact guidance, reaffirming and further defining the legal standard for a sensible, balanced use of criminal records for employment suitability. Under Title VII of our civil rights laws, employers may not deny employment based on a conviction except when the offense is job-related. With this standard, employers can protect their business interests and safety on the job, while qualified workers can still have a fair chance at the job.
Some key features for all employers to consider from the Guidance are as follows:
What Employers Can Ask
The EEOC recommends as a best practice that employers not ask about convictions on job applications. According to the EEOC, if an inquiry about a conviction is made, it should be limited to cases where the information requested is job-related.
The EEOC states that the use of arrest records “is not job related and consistent with business necessity”. An employer, however, may consider the underlying conduct if the conduct makes the candidate unfit for the position, according to the EEOC.
Factors to Consider When Evaluating Criminal History Information
According to the EEOC, employers should consider the following factors when evaluating criminal history information on a candidate:
- the nature and gravity of the offense(s)
- the time since the conviction and/or completion of sentence
- the nature of the job held or sought
Aside from instances where an employer can screen out a candidate without further inquiry (such as a day care center not inquiring about a conviction of violence against a child), the EEOC provides a list of considerations that an employer should review when making an individualized assessment on a candidate with a criminal history:
- the facts or circumstances surrounding the offense or conduct
- the number of offenses for which the individual was convicted
- age at the time of conviction or release from prison
- evidence that the candidate performed the same type of work, post-conviction with the same or different employer, with no known incidents of criminal conduct
- length and consistency of employment history before and after the offense or conduct
- rehabilitation efforts such as education or training
- employment or character references and other information regarding fitness for the position
- whether the candidate is bonded under a federal, state, or local bonding program
An important piece of this individualized assessment is that if a candidate does not respond to an employer’s attempt to gather this data, the employer can make the decision without the additional information
Compliance with State and Federal Laws
While the Guidance acknowledges that compliance with federal laws and regulations can be a defense to charges of discrimination, the EEOC states that compliance with state and local laws will not shield employers from a discrimination charge.
Employers should identify and examine their circumstances with their own legal counsel to determine if their state and local laws are preempted by Title VII of the Civil Rights Act of 1964.
Additional EEOC resources:
EEOC Pre-Employment Inquiries: Arrest & Convictions
Questions and Answers about the EEOC's Enforcement Guidelines on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII
HireSafe operates in compliance with the Americans With Disabilities Act (ADA), which prohibits employers from discriminating against people with disabilities who are qualified to perform essential job functions.
Credit Reports Compliance
HireSafe operates in compliance with the California Consumer Credit Law (Speier Act), which restricts the reporting of age, marital status, race, color or creed on employment reports for consumers that have a current California address. Additional states have begun to limit the use of Employment Credit Reports for employment suitability (HI, WA, OR, IL). As this movement progresess HireSafe will maintain the compliance imposed by their respective state laws.
California AB655 and AB1068
On January 1, 2002 the California Legislature's AB655 became effective, amending both the California Consumer Reporting Agencies Act and Investigative Consumer Reporting Agencies Act (ICRA).
This bill changed a number of provisions affecting the provision of Investigative Consumer Reports for employment purposes. Note: AB655 has been amended.
Compliance with Canadian Reporting Regulations
HireSafe follows the tenets set forth in the Canadian Privacy Act with regard to the protection of applicant information for employment screening purposes. In addition, HireRight provides the necessary forms required for applicant consent for criminal, credit and driving records reporting as defined by the Ministry of Transportation (MOT), the Canadian Police Information Centre (CPIC) and governing bodies of the individual Canadian provinces and territories (e.g. provincial departments of motor vehicles).
Employment Drug Screening Compliance
HireSafe is in compliance with the regulations published by the following organizations:
- Substance Abuse Program Administrators Association (SAPAA)
- Drug and Alcohol Testing Industry Association (DATIA)
HireSafe's reports allow employers to comply with the screening requirements of various government agencies and legislation, including:
- Federal Aviation Administration (FAA)
- Nuclear Regulatory Commission (NRC)
- Department of Transportation (DOT)
- Securities and Exchange Commission (SEC)
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