Making the right adjustments to the new background check rules is critical to temp agencies for two reasons. Following federal and state rules will help in avoiding legal entanglements or at least provide proof to justify a background check. The other reasons is to keep the workplace safe for all workers. Given the heightened litigation climate and potential liability for workers’ actions, temp agency representatives need to be very careful in the workers that they select – and the methods used while making those selections.
One bad hire can set off a firestorm that attacks temp agencies legally and financially. If the worker is dangerous, dishonest or unfit, a background check would have raised red flags before they were placed at a client’s worksite. At the same time, temp agencies must recognize the legal protections for applicants.
In 2014, the whole arena of litigation, legislation and regulation is expected to converge as temp agencies make necessary adjustments. The tension between safe hiring practices and legal protections of applicants will play out in a number of key areas. Six of these areas are discussed below along with some insight on how temp agencies can keep client workplaces safe while staying out of legal trouble.
A movement is spreading across the country to ban the job application question that asks about an applicant’s criminal past. Most standard job applications require a simple “yes” or “no” response. The primary concern is that this type of question can be eliminated in the initial stage of applying for a job.
Asking about criminal records upfront could be a huge deterrent for getting ex-offenders in the workforce. In some cases, ex-offenders might be qualified for a position but choose not to compete for a job assuming that they will be rejected if they answer honestly. By banning the question completely, applicants have an even playing field based on their qualifications rather than a past mistake.
California and Illinois were joined by other states and counties in 2013 to ban the box for public employment positions. Some states have also extended the requirement to private employers. Generally, temp agencies and employers are finding little value in this question upfront relative to the entire hiring process.
Eliminating this question upfront does not open the door for bank robbers to work as a cashier or teller. Nor does it mean that pedophiles can supervise a playground. Temp agencies are free to ask questions about past criminal conduct at an appropriate time during or after an interview. Background checks at this stage are also still allowed.
One force from ban-the-box actions is guidance from the Equal Employment Opportunity Commission that has the potential to affect hiring processes of temporary agencies and every U.S. employer.
Currently, the guidance is not a legally enforceable regulation. Nevertheless, it is important for temp agencies because it gives insight into how the EEOC will interpret employer use of criminal records. Investigations and lawsuits continue through the commission when criminal records are used. The commission is concerned about creating a discriminatory disparate impact on protected classes under Title VII of the Civil Rights Act when criminal conduct was not job-related.
Existing EEOC positions state that employers must consider the nature and gravity of an offense. The guidance also requires employers to consider the time between when the offense occurred and when a person applies for a job. Included in the guidance was a reiteration of the rule that being arrested does not equal a conviction. Many states have already passed legislation that prevents employers from asking or considering arrests when the applicant was not convicted.
Concern with the accuracy of criminal records is part of the push from EEOC to guide temp agencies and employers on fair ways of conducting background checks. Complaints are extremely small compared to the millions of background checks that are done each year. However, it only takes one inaccurate record to cause a person to lose a job opportunity or file a civil suit.
Through a self-check of the industry, a group of firms that specialize in background checks adopted a best practice that all criminal information must be verified and current before given to an employer. Relying solely on information from commercial criminal databases opens the door for many errors.
Commercial databases are not an official collection of criminal records. Rather, these databases gather information from a variety of sources that often lead to issues with accuracy and completeness. Not only can the information falsely accuse an applicant with no criminal past, but an applicant with valid criminal record might also be marked clear.
One way for temporary staffing agencies to avoid the legal landmine of commercial databases is to hire an accredited screening firm. Do-it-yourself online criminal searches might save a small temp agency time and money. By hiring an accredited background search firm, temp agencies can avoid the low quality of information could cost more when reports come back with discrepancies.
Temporary staffing agencies should work with a provider that follows best practices set by the National Association of Professional Background Screeners. This nonprofit organization serves as the ethical voice for the screening industry with an accreditation program for industry best practices.
For the most part, background screening firms are unregulated and present challenges when temp agencies need to hire a legitimate firm. Notwithstanding the oversight of federal agencies of background checks and licensing rules in some states, anyone can open an office and build a website as a background checking firm. Accreditation is one way for temp agencies to have confidence that they are dealing with a professional firm that is knowledgeable of legal requirements.
With an increasingly complex legal environment, temp agencies and their clients will not only face challenges from EEOC expectations, but they must also make sure screening providers comply with the Fair Credit Reporting Act.
Employment experts predict that the use of credit reports will soon disappear from the hiring landscape. There have already been significant limitations placed in the use of consumer credit reports during the background check process by some states. Much like using criminal records that are irrelevant to an applicant’s qualifications or job duties, information on credit reports unrelated to a job should be off-limits.
The EEOC is also considering whether the increased use of credit reports may create a discriminatory disparate impact. Some groups might be particularly vulnerable since the Great Recession left many people unemployed for extended periods of time. Before temp agencies include the use of consumer credit reports as part of their hiring process, they should determine if state law authorizes the use. Restrictions are possible for 2014 and beyond.
Globalization has also opened the door for the use of international background checks on people who have lived and/or worked abroad. However, temp agencies cannot assume that the screening process followed in the U.S. is the same in the other 190 political entities of the world. There are broad differences between domestic U.S. processes, including the availability and legality of what information can be obtained.
However, working in the favor of temp agencies and their clients is an expansion of resources for conducting international checks. Receiving a report may take longer and cost more than domestic background checks. This does not, however, discourage some agencies from including these checks in standard hiring practices when appropriate.
More employers are recognizing the benefits of conducting background checks on prospective employees. Temp agencies should educate their clients on the importance of the accuracy and appropriateness of such records. While background checks remain an effective tool for weeding out unfavorable applicants, it is best to proceed with caution.
Consideration must be given for legal limitations on how background checks can be performed during the hiring process. Limitations also apply to how information from such checks can be used. Otherwise, temp agencies and their clients will be in a precarious position in defending their actions.
This article was provided by Commerce Commercial Credit.
