Submission Date:
Question:
We are considering pre-employment background checks. What should we know when instituting this process?
Answer:
To implement a background check process on potential hires, you’ll want to avoid workplace discrimination issues by establishing proper notification steps and by taking the following into consideration.
Prior to instituting a background check program, an employer must be able to demonstrate a connection to the work being done. A clear connection to the work of the employer or of the role needs to be determined. What are you concerned with in someone’s history relative to the work they will be doing? A clear example of this is checking the sex offender registry for those working with children.
Additionally, the checks must be run consistently. Every prospective employee for the same or similarly situated role or job class should be undergoing the same checks. If the connection to work is being drawn – all roles connected to the work that is justifying the check should be included in the process.
A proper background check process begins with the offer. An employer using a pre-employment background check may only start the background check process after a conditional offer is made to the prospective new hire.
To do the check, the prospective new hire must complete a release form which is commonly provided with the offer letter and include the following notices:
- Fair Credit Reporting Act
- NY Article 23 A
Any information that is obtained in the process of running the check must be evaluated in light of the situations surrounding any found convictions as outlined in NYS’ Article 23A. Background check considerations should be treated on a case-by-case basis and, if results are found, evaluated on their own merits adhering to NY Article 23A guidance.
If a candidate’s conditional offer is rescinded based on the results of the background check, a Pre-Adverse Action Notice must be issued to the candidate giving them 5 days to dispute the results. This notice should include a copy of the report, contact information for disputes, and copies of the FCRA and NY Article 23A.
After 5 days, the employer may send an Adverse Action Notice finalizing the rescinded offer.
There are many background checks services able to provide electronic delivery of release forms, results, and consult on necessary notices. A good background check partner will also have knowledgeable representatives that will help you with understanding results, if necessary, and ensure you have a solid, compliant process.
