• Todd Eiseman

Exploring Background Screening Trends

Updated: May 2, 2018

Whether you want to admit it or not, we’re inching closer to the end of 2015 and all the holiday festivities that go with it. It’s the time of year companies find themselves scrambling to finish up projects and evaluate hiring goals in order to make sound decisions for the coming year.

With that in mind, we’ve studied some of the biggest background screening trends we’ve seen over the last few months so that employers can be better prepared for their future hiring initiatives.

Increased FCRA Class Action Lawsuits

The FTC appears to be taking a much more proactive stand in tracking down and penalizing organizations that violate the Fair Credit Reporting Act (FCRA) when screening candidates. For the past few years, the number of suits brought by the plaintiff’s bar has also increased – 2015 has been a record year so far – which should serve as a serious warning for any company planning to hire in the coming year.

When you choose to partner with a background check firm to aid you in the hiring process, it’s crucial that you do your homework and choose a vendor that knows and follows the law. Organizations who work with a consumer reporting agency must ensure that candidates supply written permission to run the background check. Candidates must also be informed that this information may affect the hiring decision. If in fact this does occur, employers must provide the candidate a copy of the relevant report among other key documents, while simultaneously following all Federal, State and local regulations on the use of the report. Be aware that this is not a short list if you hire candidates in multiple states!

Employers and background check companies alike are hit by FCRA class actions for a number of reasons. Most commonly, these include failing to meet the necessary disclosure and consent requirements, neglecting to inform candidates of his or her rights under the FCRA, and not following legal guidelines when decisions that are based on report content could be adverse to the consumer.

Increased EEOC Filings

The FTC and EEOC appear to be on the same bandwagon when it comes to increasing litigious complaints against employers. The number of EEOC cases that were filed this year increased significantly from the previous year, indicating the serious crackdown on employment discrimination.

Law firm Seyfarth Shaw LLP breaks this year’s cases down by type, finding that Title VII cases were the most common; that’s discrimination against sex/pregnancy, race, national origin, and religion. Other discriminatory cases include violations of the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA), and Genetic Information Nondiscrimination Act (GINA).

While this issue isn’t necessarily directly related to your background screening process, it nonetheless goes hand in hand when you’re screening candidates. All individuals involved in the hiring decision need to be highly aware of EEOC regulations in order to mitigate risk of discrimination.

Ban-the-Box and Fair Chance Act

We recently discussed some of the nuances of the ban-the-box campaign, which several states and cities have adopted into law. This essentially obligates employers to wait until the interview process or extension of a job offer to ask a candidate about their criminal background – rather than requiring applicants to check a box on their application.

Ban-the-box legislation has, so far, been a choice left up to local and state governments. However, the Fair Chance Act was introduced at the federal level this summer, and appears to be gaining momentum. Except for industries such as law enforcement and national security, prospective employees would be protected from being asked about their conviction record until a job offer is formally extended. Only then can an employer make a decision for or against a candidate based upon their criminal history.

Critics of this bill say it slows down the hiring process – both for the employee and candidate, should the offer be retracted. However, those supporting it are trying to protect the millions of people who face employment barriers because of criminal histories, even when their records are unrelated, minor, or outdated.

While the Fair Chance Act is currently pending, the growing number of states and cities that have or are considering similar legislation means that employers must be vigilant at all legislative levels.

Bringing It All Together

At the end of the year, trends in background screening and risk in the hiring process in general have a significant impact on how, and where an organization may choose to do business. It’s crucial to stay up-to-date with what’s current and on the horizon – and vital to work with a background check firm that understands this too. We strongly encourage all our clients to obtain Legal advice from employment law counsel to help stay ahead of these fast moving legislative and litigation issues.

At easyBackgrounds, we work closely with clients to make sure they stay informed about the latest news, laws, and practices. Reach out to us today if you need a background check partner you can trust.

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