5 Steps To Protect Your Business From Discrimination Lawsuits

Written by Andrew Dose on November 21, 2017

2015 has already seen huge changes in the hiring arena: with movements like Ban the Box and Fair-Chance Hiring gaining steady momentum across the United States, employers are now being held accountable more than ever for their hiring practices. 

The prevailing legislation in all matters background screening is the Fair Credit Reporting Act (FCRA): these rules and guidelines act as a cornerstone to the pre-employment background screening industry and guide both 1) the responsible/accurate reporting of background screening information by Consumer Reporting Agencies (CRAs) and 2) the overall use of this information by their clients.

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Thankfully, employers are at a huge advantage when incorporating the services of vetted CRAs: these companies strive to keep their clients’ best interests in mind and can be called upon to help hone policies and procedures. It’s when HR departments (formal or otherwise) are not aware of the guidelines for employers set forth by the Federal Trade Commission (FTC) or when they purposefully ignore these best-practices that companies find themselves in hot water with the EEOC. 

Related Article:  5 Ways Everybody Loses in Employment Discrimination Lawsuits 

Here is a list of steps that owners and HR professionals alike can take to beef up their background screening policies and to take steps to protect their business from unwanted legal attention:

1)    Commit to the protection of your applicants' rights.

We suggest adopting the policy and practice of protecting your applicant rights first and foremost. Any background screening company worth their salt will already be following this ethical standard, which transfers through the background check process and becomes a second line of defense for employers. It is, highly recommended, however, that each company implement their own safeguards by creating hiring P&P that demonstrates a high, consistent regard for their employees’ rights (existing and potential) and keeps their applicants’ rights in mind for each background screen. 

2)    Follow the End User Guidelines Under the FCRA to the letter.

Synching your hiring process with the FCRA is a must for all companies. Getting all HR parties familiarized with these guidelines gives companies the professional high ground — the guidelines do a great job of outlining the legal and ethical responsibilities expected by both employers and their background screening vendors. 

3)    Make sure all position types are hired/screened for on a consistent basis.

This step not only helps narrow down the types of packages/searches used for screening, but it also provides a basis for the various levels of hiring that can exist in corporate structure. An example of position-based specifics would be a job which includes driving vs. non-driving responsibilities. In this situation, companies should avoid pulling MVRs for employees whose job does not include driving duties and/or the use of company vehicles. Inconsistencies in this part of the hiring process will often lead down a slippery slope of obtaining too much information on employees, which can easily become a rights violation. 

4)    Use all background screening forms required by law.

CRAs are responsible for housing and tailoring these forms, as well as making these forms readily available for their clients. These mandatory documents are as follows:

  • Disclosure Regarding Background Investigation: MUST be signed by the candidate prior to the background screen, which states that the screening is a condition for hiring. Please note: depending on the company’s location, Ban the Box regulations may apply (see link above).
  • A Summary of Your Rights Under the Fair Credit Reporting Act: these rights MUST be given to all applicants at the time of obtaining the signed Disclosure. 

5)      Implement a Preadverse Action / Adverse Action policy and use it consistently.

Whenever an applicant is denied employment based on adverse information found on a background screening report, companies are required by the regulations outlined by the FTC (adverse action information found halfway through) as well as in the FCRA itself to notify their adversely-impacted applicant in a timely fashion. This critical step affords applicants the opportunity to dispute in the event information has been reported inaccurately by the CRA. While perfect reporting is an ideal every CRA strives for, researchers can and do make mistakes, which has led to incorrect denial of employment in the past. Thankfully, adhering to this notification process places yet another safeguard between employers and possible discrimination lawsuits.

Topics: Helpful HR Resources

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