Federal, State and Local Compliance in Background Screening: What Employers Need to Know

Hire the Right Candidate with the Right Background

One of the most important things to remember is that the background screening industry is highly regulated by various local, state and federal laws. Employers must be familiar and compliant with these regulations when hiring new employees. Keeping apprised of the latest updates about the Fair Credit Reporting Act (FCRA) is crucial to ensuring companies are staying compliant with HR regulations.

For both employers and candidates alike, background checks can be complicated. One of the most important things to remember is that the background screening industry is highly regulated by various local, state, and federal laws. Employers must be familiar and compliant with these regulations when hiring new employees.

Keeping apprised of the latest updates about the Fair Credit Reporting Act (FCRA), along with state and local laws are crucial to ensuring companies stay compliant with regulations. It is incumbent upon both employers to remain compliant with the FCRA, state and local laws and Consumer Reporting Agencies (CRA), such as Sterling Talent Solutions.

Over my 40 years in the industry, I have fielded many questions about FCRA, state and local compliance, but a few stand out as some of the most commonly-asked questions that happen to be very relevant and timely today, such as those that relate to Ban the Box, Pay Equity, international screening and pending criminal charges. Let’s take a closer look at these commonly-asked questions.

Ban-the-Box Laws:

Laws that directly impact a company’s hiring procedures, such as Ban the Box and Pay Equity laws, are growing across the country and have significantly impacted the hiring landscape. Ban-the-Box laws generally prohibit employers from inquiring about prior criminal convictions until a later point in the hiring process. They are intended to promote evaluating applicants based on their qualifications instead of automatically disqualifying convicted criminals. The Ban-the-Box laws make it illegal to include a check box on a job application asking about criminal history, prevent companies from asking about a job applicant’s criminal history on an application and, in some cases, do not allow employers to ask about criminal convictions during an interview. The criminal history questions can be asked later in the hiring process, such as after an offer is made to the applicant and can be investigated, with the consent of the applicant or during a background check.

Because Ban-the-Box laws are widespread, employers often ask if they should remove the criminal history question from a job application, even if there is currently no Ban-the-Box law in their area. We consider it a best practice to remove the criminal history question from the application, especially if you are running a thorough criminal history search as part of a background check. In all likelihood, you are going to find that information that the candidate would have disclosed.

Pay Equity Laws:

Similarly, Pay Equity laws are a growing trend. The intent of the laws is to eliminate the “pay gap,” suggesting that a previous salary history could lead to gender-based or other wage discrimination. Due to the pace at which local and state legislatures are enacting these laws, employers who have offices in multiple states should consider making company-wide changes regarding salary history inquiries during the hiring process – even if the laws do not yet apply in their areas. Employers should consult with legal counsel to review and revise all hiring documents, employment applications, background check forms, or any other forms used during the hiring process to ensure that there are no inquiries regarding salary history in the applicable jurisdictions.

International Screening:

With more than 196 countries plus countless jurisdictions to continuously monitor, the key to global screening success is knowing where to search, the information to search for, and the required compliance requirements in each country.

Despite its complexity, global background screening is increasingly important as employers want to feel confident in their workforce, regardless of where they sit today or where they’ve worked in the past. However, some companies are concerned about conducting international screening because they are not confident in the reliability of the results.

So many employers ask how reliable the information is from an international criminal search. This goes on a country by country basis. The essential point is that some countries have very reliable data, while others are less comprehensive. Though it is not a perfect science, knowing the reliability rating of a country before you conduct the international checks may influence the ultimate decision.

Pending Criminal Charges:

Criminal history can certainly be a deciding factor in whether or not to offer a job to a potential candidate. However, we’re often asked whether companies can make a hiring decision based on a pending criminal charge. This is where knowing the regulations within your company’s area is critical, and consulting with your legal counsel is key to staying compliant. There are some states which prohibit this practice because the charge is not yet a conviction. However, under Federal law and in most states, it is permissible to use pending criminal charges to deny employment within a seven-year window.

Conclusion:

Regulations around FCRA, State and Local laws can be intimidating to companies that are working to navigate these rules and stay compliant, so having the right support team in place that can answer your burning questions is critical. Utilizing your legal teams as well as those who specialize in compliance at an international, regional, state, and jurisdictional level can help simplify a complex process and ensure that your company’s best interest is in mind.