When a background check returns with a problematic history about an applicant, it’s best to take a step back and fully assess the situation professionally, free of emotion and hasty decisions. As most business and HR professionals know, hiring is a complex process. It can be highly fulfilling to find the right fit, and disappointing to find red flags popping up on your top choice for the job. Committing to a legally sound process when hiring can mitigate many of the potential issues that can arise when this is the case.
Here are a few things to think about when preparing for – and managing – a failed background check:
- Know what you are looking for going in. While it’s not illegal for an employer to ask questions about an applicant's background, certain topics such as age and marital status are off limits. However, questions about a person's work history, education, criminal record and financial history are acceptable as it relates to the job for which they are applying.
- Equality is key. Federal laws protect both applicants and employees from discrimination. Discrimination based on race, color, national origin, sex, or religion; disability; genetic information; and age are prohibited and is enforced by the Equal Employment Opportunity Commission (EEOC). No matter how you receive this information (using a certified, professional background company or a human resource department), you must comply with the law.
- Do not ask any medical questions before a conditional job offer has been made. If the person has already started the job, the EEOC suggests that you don't ask medical questions unless you have objective evidence that the employee is unable to do the job or poses a safety risk because of a medical condition.
- If you get background information (i.e., a credit or criminal background report) from a company that collects such information, some additional procedures are required. The applicant must be informed of the use of information for employment decisions. This notice must be in writing and must be separate from the employment application. If you are asking a company to provide an investigative report based on personal interviews concerning a person's character, reputation, characteristics, and lifestyle, you must tell the applicant of their right to understand the nature and scope of your process.
- Understand your responsibilities under the federally mandated Fair Credit Reporting Act (FCRA). Under this regulation, if information discovered in a background check prevents a candidate from being hired, employers are required to provide candidates with a notice explaining why that ‘adverse action’ was taken. The same law applies to current employees who are terminated or denied a promotion.
- Always get the applicant's written permission to do the background check. This can be part of the document you use to notify the person that you will get the report.
