The confusion over background checks that misguided employers, hiring managers, human resources partners, may be requiring, of job candidates continues to get deeper. Laws exist regarding what information can be used in making hiring decisions.
Recent discussions around the Fair Credit Reporting Act (FCRA) have pushed this to the forefront for recruiting firms, employers and human resources professionals.
NOTE: This blog is not legal advice, just bits of history, words of wisdom, and questions to ask yourself before you enter this quagmire. As in everything legal, DO GET QUALIFIED COUNSEL. This is one of those cases.
Recently, I read an article (Background check forms face increased scrutiny in federal court.) published on Feb 12 of this year by Todd H. Lebowitz. This is a good read, on the www.lexology.com website. In summary:
- Review disclosure and consent forms. Whether contracts, agreements, or forms, it is critical you have them.
- Look carefully at the language around waivers.
- Timing is everything – make yours a policy.
What seems like a good idea, may get you in hot water later. Know the law and execute your actions with precision and documentation.
The best advice: Avoid doing background checks for most jobs. Do performance-based interviewing and hiring.
Seriously, if you are hiring a janitor, engineer, most management, and even some executive leadership, doing a background check is not helpful. You need a candidate that can perform the work. That’s the value of performance-based interviewing and hiring.
When companies use background checks as a hurdle for all employees, they sometimes think that they are ensuring no discrimination by running every new hire through the same process. They may be doing just the opposite.
There are jobs that Background Checks are necessary. For example, hiring teachers to work with small children. Hiring individuals to handling financial instruments.
If you do background checks, there are some common sense questions to ask – there are other questions to ask – these are only a few.
- Ask if it’s necessary and legal for the position, if not, don’t do it.
- Ask if your company can take on the risk of this new level of liability.
- Ask if you are prepared to ask applicants / candidates to give up certain rights.
The standard consent and disclosure forms are clear in transferring liability to the employer (if you don’t know this – get qualified counsel – I am not giving you legal advice). Bottom line, when you ask a candidate to sign away rights, you are eroding the employer-to-employee trust before you hire them. This is a bad way to start, and a bad reputation to have associated with your company’s brand in the marketplace.
Barton Professional Placement advises clients against performing background checks except in rare cases. We articulate the value and process of performance-based interviewing and hiring, and direct employers to the ultimate goal of building the best organization is greater than piling on risk and liability unnecessarily. We always direct them to their corporate counsel.
What about timing. Be sure it’s the last step you do, but it precedes hiring. Don’t hire, then on-board an employee, only to receive the background check information after they start. You can do very little based on the new information – you already hired the employee!
If I’ve given you pause to ask questions, that’s my intent. There’s a lot of good guidance out there that can teach you enough to ask the right questions of your own corporate counsel. Another reference employers in Illinois might find valuable is from Bloomberg Law Reports by Steinmeyer and Trapp, titled: Beware of the Newly Enacted Illinois Employee Credit Privacy Act.
As a final note of question for caution, if you are a senior executive, be sure you know what your hiring managers and your human resources people are doing in the hiring process. It is common to see processes being added to hiring under good intention, but without always considering the implications. If you don’t know if your process does background checks, be sure you know it does not. You may be bringing on unchecked liability to your firm.
Barton Professional Placement has developed an information brief on this topic. We share our whitepaper with our prospective clients interested in this topic. Call Barton Professional Placement Group today to set up an appointment or to learn more about how we can help you achieve your organizational development goals.
