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Staffing Check Mate: Has Job Candidate Screening Gone Too Far?

This past spring has been monumental when it comes to the issue of pre-employment/employment screening. While the city of New York debated whether to ban employers from conducting credit checks on job candidates, our own Texas Senate passed a bill allowing drug tests for unemployment applicants. From drug testing to credit checks to criminal background checks: Is job candidate screening everything it’s cracked up to be? Can it sometimes do more damage to the hiring process than good? With the help of Ann Price, partner at Boulette & Golden, L.L.P. in Austin, TX, we answer this staffing quandary with three key points to consider.

Do you have a legitimate reason to run a check?

Legally and morally, this is perhaps the most important question you should ask yourself. Perhaps your screening for the wrong reason…or for no real reason at all.

“Consider the reason you would want to formally screen an applicant,” says Price. “Ask yourself, ‘What specifically would make the applicant unsuitable for the position?’”

Drug testing, for instance, is increasingly common when staffing safety-sensitive positions. And criminal background checks – specifically, looking for a history of violent crimes – are important when staffing positions that involve working with small children or the elderly.

Not only can tightening up your policy on background checks save time and money, it can also help protect you from potential discrimination issues.  In April 2012, the U.S. Equal Employment Opportunity Commission updated its enforcement guidance pertaining to the use of criminal records in employment screenings. To summarize in part, the guidance asserts an employer’s use of an applicant’s criminal history during the hiring process could potentially be seen as discrimination under the Civil Rights Act of 1964. The bottom line: Make sure your policy on when and how candidates are screened holds up to legal scrutiny.

Should you use an outside agency?

Most organizations turn to a third-party agency to screen candidates. However, certain disclosure rules apply when using these firms versus conducting research on your own. Texas Workforce Commission explains two main considerations when using an outside source involve credit checks and criminal background checks.

First, disclosure is necessary when using an outside source. Under the Fair Credit Reporting Act, employers must give written notice that a credit or background check will be done – and they must receive written authorization from a job candidate – if an outside agency will be used.

Second, when it comes to background checks, outside companies will not report criminal history information occurring more than seven years ago. The only exceptions to this rule, according to the Texas Workforce Commission, are instances in which the position’s annual salary is $75,000 or more or the position is with an insurance business.

One way to address both issues? Do your homework.

“While it’s difficult to conduct a full background check independently, a lot can be learned by accessing public records, particularly ones that pre-date the seven year cut off,” explains Price.

Are you leaping to unfair conclusions?

Now that you’ve gathered the information, how are you going to process it? Remember job candidates are individuals, each with unique circumstances. There’s a reason disclosure and consent are built into much of the screening process: It allows a job candidate the chance to put the offense into context.

“Weigh the information you uncover with the job in question,” says Price. “Consider the data thoughtfully and give each and every job candidate an opportunity to explain him or herself.”

How has your own screening process changed or evolved over the past few years, and what staffing lessons have you learned along the way? Leave your comment below…We’d love to start a conversation!

Ann Price can be reached by contacting Boulette & Golden, L.L.P. at (512) 732-8900.

Image credit: alphaspirit / 123RF Stock Photo

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