When it comes to employment background checks, everyone is laser-focused on key performance metrics like turnaround time, accuracy and ease-of-use. While these are certainly important, your first priority should always be compliance, especially if you rely on your background check vendor to help keep you compliant.
Unfortunately, compliance requirements have changed quite a bit over the past three years and many background check systems have not kept pace with the latest changes. Several court rulings and the addition of numerous Ban-the-Box laws have made compliance more complex and challenging. You should make sure the compliance tools your vendor has in place are current and do not place you at risk for enforcement agency investigations or lawsuits.
You might be inclined to brush these things off but getting investigated by the FTC or EEOC, or getting sued for non-compliance is nothing to be causal about. The actual costs might be covered under insurance policies your company carries but these policies cannot protect you from the hundreds to thousands of hours you will spend gathering and sending documents to lawyers, lawyer calls and emails, lawyer meetings, depositions and court time. And to make matters worse, these kinds of situations usually get noticed and covered by the media which can harm your company’s reputation with customers and potential talent. All of this is great for your competitors and bad for you, your colleagues and your company’s shareholders.
Here at SafestHires, we have gone the extra mile to create a fully compliant process that presents all of the required pre-employment background check forms and disclosures to candidates with our online workflow. This is a pretty big deal because many companies have thought they were being compliant, only to discover later in a lawsuit that the forms and disclosures they had been using were actually not compliant, or the manner in which they presented the forms and disclosures to candidates was non-compliant. That’s right. Even if you are using the correct forms and disclosures, if you present the information to your candidate “the wrong way,” you could wind up in court for compliance violations. Crazy!
To ensure full compliance, it definitely helps to consult experienced legal counsel. We’ve done this and our forms, disclosures and workflows meet all compliance standards.
Where the process becomes even more complex is making sure you comply with special adverse action rules that are now required by numerous jurisdictions as part of their Ban-the-Box or Fair Chance laws and ordinances.
Adverse action is the process of denying employment or not hiring an independent contractor based on the results of their background check. The standard approach to comply with federal law requires that you send a Pre-Adverse notice to the candidate, with their FCRA Summary of Rights and a copy of their background check, and then wait at least five business days before sending them a final Adverse Action notice. Of course, if they dispute the accuracy or offer an explanation, you would extend the waiting period until this was resolved.
But today, 12 states and 18 cities/counties require some form of an individualized assessment to be included with the Pre-Adverse notice. In most jurisdictions, the specific reason for initiating pre-adverse action must be cited in your Pre-Adverse notice but New York City and Los Angeles require that you complete and an entire individualized assessment form and this completed form must accompany your Pre-Adverse notice (and your Adverse notice in Los Angeles). There are also special disclosures that must accompany the notice and you must provide options for the candidate to file a dispute and also to provide an explanation or context.
We have made a mighty investment in our system to ensure total compliance with these requirements in a fully automated workflow that is geocentric – and it’s all available at no cost to our clients.
“Geocentric” means that our system will recognize which jurisdiction the candidate lives in and apply the correct individualized assessment requirements for the adverse action process under that jurisdiction’s Ban-the-Box or Fair Chance requirements.
In those jurisdictions that require a basic individualized assessment, when you click the Pre-Adverse link, a pop-up window will appear and you will be given the opportunity to type the specific reason for Pre-Adverse action, and this will be inserted into the Pre-Adverse notice that gets sent to the candidate. If the candidate lives in New York City or Los Angeles, our system wil recognize this and the individualized assessment form for these jurisdictions will appear on your screen. You will enter the required information and the completed form will accompany the Pre-Adverse notice.
Our Pre-Adverse notices include a link to a secure, online dispute portal where the applicant can begin the dispute process. Also included in the Pre-Adverse notice is a link to a Confidential Adverse Action Worksheet, where the candidate can provide an explanation (context) along with any supporting documents.
When Pre-Adverse Action is initiated, the 10-Busines Day waiting period is triggered. However, if the candidate files a dispute or submits an explanation on the Confidential Adverse Action Worksheet, the 10-Business Day waiting period will start over.
On the 10th Business Day, you will receive an email from us that gives you the ability to initiate Final Adverse Action by clicking a link in the email.
Our fully automated process meets all requirements, including the special disclosures, individualized assessments and candidate feedback loops covered under these regulations. And even though this process is not legally required at the federal level, it is nonetheless strongly encouraged by the EEOC. To see how all of this works, you can schedule a demo with us here.
If you schedule a demo with us, you will also get to see how we exceed expectations on other key performance metrics like of ease-of-use, speed and accuracy – and you will also discover how we can reduce your background screening and drug testing costs by 25% to 50%.