Background Check Compliance: Employee Applicant Rights

Conducting employee screening and background checks is such a common practice these days that a basic check can be done for less than $20. More complex investigations, known as investigative consumer reports (ICRs), are much pricier and are often conducted on candidates of high-level positions. 


But regardless of the type of background check being conducted, employers and candidates have rights that both parties should understand beforehand. Business owners have a right to protect their own interests, and employees have a right to know what information is being pulled for what purpose — and to give their consent. Continue reading to find out what you need to know before starting this process.


Why Conduct a Background Check?


In an ideal world, employers could accept an applicant’s claims at face value, but falsified resumes are unfortunately becoming increasingly common. Employers elect to pay for background checks on prospective employees because they want to make informed hiring, promotion, reassignment, and retention decisions to protect their organization. 


Running a background check is the safest way to grow your personnel, but there are a few things you must do in order to comply with laws, maintain FCRA compliance, and avoid litigation.


State and Federal Laws


When it comes to federal and state laws surrounding employer background checks, be aware that:


  • Some states prohibit the use of arrest data in employment decisions if there was no conviction.
  • Other states allow taking adverse action in response to conviction history, but only in certain circumstances.
  • On a federal level, the Equal Employment Opportunity Commission (EEOC) prohibits the denial of employment based solely on a criminal conviction if that conviction is not relevant to the job.
  • A company’s screening policies must be in compliance with the Fair Credit Reporting Act and Equal Employment Opportunity Commission.
  • Anything considered public record is open for investigation, including Social Security number, criminal record, bankruptcy filings, property ownership, and court documents.


For criminal records, there are an additional few items to keep in mind:


  • Most states keep records on file indefinitely.
  • The FBI’s National Crime Information Center keeps nationwide records, but they can only be accessed by law enforcement agencies. Oftentimes, these records are not as reliable as those on a state level.
  • Some states, like California, have placed time limits (about seven years) on how long a person’s criminal records may affect their employment eligibility or be reported.


The Fair and Accurate Credit Transactions Act


In 2003, the Fair and Accurate Credit Transactions Act omitted data from protections under the Fair Credit Reporting Act (FCRA) if the investigation was related to suspected employee misconduct. The FCRA still protects the employee’s right to notice if the investigation results in adverse action being taken; there must be an understanding between the employer and the CRA issuing the consumer credit report that the employer will comply with the Fair Credit Reporting Act. 


Additionally, employees must provide written consent for the release of medical information, education, military service, and credit information to be used for employment purposes.


Simplify Background Checks With VICTIG


Due to the personal information that is sought as part of a background check, the process of obtaining sensitive candidate records is highly regulated. Hand over red-tape duties to a qualified third-party service provider whose job it is to make sure background checks are done properly. Contact VICTIG today.

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