The Process of Conducting Criminal Background Checks

Conducting criminal background checks requires meticulous attention to detail and strict adherence to legal guidelines. This multifaceted procedure involves several critical steps, from obtaining explicit consent to ensuring compliance with privacy laws.

EXPERT INSIGHT: Throughout the criminal background check process, we in the Human Resources department must balance thoroughness with legal compliance—whether defining the scope of the check or selecting the right tools for the search. Adhering to privacy laws is paramount to safeguarding sensitive data, and decisions should reflect fairness by considering the relevance of findings and the candidate's history. By committing to these practices, HR can inspire confidence and make informed hiring decisions that uphold both legal standards and ethical principles. - Charm Paz, CHRP

1. Obtaining Consent

• Explicit Permission: The first step is to obtain clear, written consent from the candidate. This is a legal requirement under the Fair Credit Reporting Act (FCRA) and a practice of transparency and respect for the individual’s privacy.
• Informing the Candidate: It's important to notify the candidate of the background check, including the type of information that will be searched and how it could potentially impact their employment. This information should be presented clearly and separately from other employment documents to ensure it's not overlooked.

2. Defining the Scope of the Search

• Understanding Legal Limits: State and federal laws often limit the scope of a background check. For instance, some states restrict employers from considering arrests that did not lead to convictions, while others may have 'ban the box' laws laws that delay background checks until later in the hiring process.
• Tailoring to the Position: The relevance of the background check to the job role should also dictate its scope. For example, positions requiring handling sensitive information or working with vulnerable populations might need a more thorough background check.

3. Conducting the Search

• Choosing the Right Tools: HR professionals have various methods for conducting background checks, including in-house searches, public record searches, and third-party background check services. Each method has advantages and limitations, and the choice often depends on the resources available and the information required.
• Accuracy and Completeness: Ensuring the information collected is both accurate and complete is essential. This may include cross-referencing data from various sources or addressing any discrepancies identified during the verification process.

4. Adhering to Privacy Laws

• Confidential Handling of Information: All information obtained through the background check must be kept confidential. This includes securely storing the data and limiting access to only those who need it for hiring decisions.
• Data Protection Compliance: Adhering to data protection laws is essential, particularly when managing sensitive personal information. This involves compliance with national regulations such as the FCRA and awareness of specific state privacy laws.

5. Reviewing and Decision Making

• Evaluating the Findings: Once the background check is complete, HR professionals must carefully review the findings. When considering criminal history for a job, we evaluate the relevance, nature, and severity of any offense, as well as the time elapsed and the candidate's subsequent history.
• Fair Decision Making: Decisions based on the background check should be made fairly and in compliance with Equal Employment Opportunity Commission (EEOC) guidelines. It's necessary to avoid discrimination based on a candidate's criminal record and to assess each case individually.

In conclusion, conducting criminal background checks is a complex process that requires HR professionals to balance thoroughness with fairness. By following these steps and adhering to legal and ethical standards, HR can make informed hiring decisions that protect the interests of the company while respecting the rights of candidates.

Frequently Asked Questions

How do I obtain consent for a criminal background check from a candidate?

Answer: Consent must be obtained in writing, clearly stating that a background check will be conducted during the hiring process. This consent should be documented on a form separate from the job application to ensure the candidate acknowledges and understands their consent. The form should also inform the candidate of their rights under the Fair Credit Reporting Act (FCRA), including the right to dispute the accuracy of the background check results.

What is the difference between an in-house search and a third-party service for background checks?

Answer: In-house searches are conducted internally by the HR team and typically involve checking public records or online databases. On the other hand, third-party services are external agencies specialized in conducting background checks. They often have access to more comprehensive databases and can provide more detailed reports. However, using a third-party service requires additional FCRA compliance, such as providing a separate disclosure and obtaining explicit consent to use a third party.

How should HR handle the privacy and security of the information obtained from a background check?

Answer: Information obtained from background checks must be kept confidential and secure. Only authorized personnel involved in the hiring decision should have access to these reports. The data should be stored securely, physically in a locked file or digitally, with appropriate security measures. Additionally, HR should have a clear policy on how long this information is retained and the process for its secure disposal.

Can an employer run a background check before making a job offer?

Answer: This depends on the state laws and company policy. Some states have 'Ban the Box' laws that require employers to wait until after an initial job offer is made before conducting a criminal background check. In other states, employers may have the flexibility to conduct these checks earlier in the hiring process. However, making a conditional job offer before conducting a background check is generally considered best practice.

What should HR do if a background check reveals information that may affect the hiring decision?

Answer: If potentially disqualifying information is uncovered, HR should conduct an individualized assessment. Consider the nature and gravity of the offense, the time elapsed, and its relevance to the job role. The candidate should be allowed to review the findings, provide additional context, or dispute inaccuracies. Any adverse action based on the background check must be communicated to the candidate, along with a copy of the report and a summary of their rights under the FCRA.