You Can’t Have Red Light/Green Light Background Screening
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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowCompanies that provide background screening get the call from prospects nearly every day. "We want you to manage our screening process and tell us whether it’s okay to hire a particular candidate." They’re always shocked when we refuse.
We call that approach Red Light/Green Light, in which organizations want to feed names into our "machine" and get a signal that says either "stop" or "go." But background screening is not red or green — or even black and white.
Companies like ours provide information that will help you make a better decision, but we can’t make that decision for you. It’s up to you to take the information and compare it to your own policies and values when evaluating prospective candidates. Not only is that the ethical thing to do; it reduces the possibility that you’ll be faced with a lawsuit that you’re likely to lose.
Like a credit report, a background check is nothing more than a collection of historical facts. Your credit report says you took out a $24,000 car loan two years ago, have $18,000 left to pay, your monthly payment is $476, and you’ve never made a late payment. It doesn’t say what kind of car you bought, what color it is, or whether it was the appropriate choice for your budget and lifestyle. Similarly, a background check might tell you that a candidate was convicted of a particular crime on a particular day and was given a specific sentence. It can’t tell you whether she’s nice or trustworthy, or whether she would fit into your team.
That’s where you have to make a judgment call. And, if you want to be fair and comply with hiring laws, that judgment call should be based on clear policy and an understanding of the laws governing hiring practices. After all, a candidate who is suitable for a position with one organization may just not be right for another, and you’re better able to make that call than a system or an outside vendor.
Thanks to technology, there’s more information available today than ever before. The key is knowing how to use that information effectively, appropriately, and legally. Start by working with your HR team and legal counsel to develop policies.
Several EEOC actions in recent years provide a framework for properly incorporating background screening and criminal records into the hiring process. You can’t subject one candidate to a screening and simply decide that another is a good guy. Nor can you adopt a zero-tolerance policy that says you won’t consider anyone with a criminal conviction.
When you review conviction information, you have to consider what the crime involved, how long ago it happened, and the candidate’s age at the time. You also have to take the candidate’s work record since the conviction into account. You have to be able to prove that there’s a business necessity for rejecting someone based upon a past conviction. For example, if a candidate has past DUI convictions, you probably have a valid reason not to hire her to drive your parking lot shuttle, but not to deny her a position on your production line. And if the last conviction was 10 years ago, and she’s driven with no problems for other companies since then, you need to give her the benefit of the doubt. If a past conviction enters into your decision-making process, you should also give the candidate an opportunity to explain.
Finally, if you decide to use background screening results to reject a client, the Fair Credit Reporting Act says that you need to follow a process. It starts with a pre-adverse action letter, a copy of the background screening report, and a summary of the candidate’s legal rights. You have to give the candidate at least 5 business days to review the information and contact you if he wishes to provide feedback for your consideration. Only then can you send an adverse action letter, informing him that you’ve decided not to hire him based on information in the screening report. Skip any of those steps, and you may find yourself in an unwinnable lawsuit. (And that’s just at the federal level. Nearly two dozen states make employers address additional provisions.)
Yes, companies like ours can shine a bright spotlight on what your candidates have (or haven’t) done in the past, but unless there are dramatic changes in the law, we’ll never be able to tell you whether that light is green or red.
Mike McCarty is CEO of Danville-based Safe Hiring Solutions.