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Smart Hiring: Take Care When Using Background Checks

5/2/2016 - By Zachary Farrington

Last December, the U.S. Bureau of Labor Statistics issued a study projecting that the construction industry will add more than 790,000 new jobs by 2024. It seems the competition for qualified construction employees is going to remain intense for some time to come.

Despite the tightening labor market, it’s important not to take shortcuts when recruiting, screening and hiring new employees. Careful screening can help ensure a safe and productive working environment while also reducing the risks of fraud, theft or other problems.

Regulatory Limitations 
Unfortunately, properly screening applicants is not a simple process. Local, state and federal laws limit what types of background checks you can conduct, as well as how the information uncovered can be used in making hiring decisions.

For example, in 2012 the U.S. Equal Employment Opportunity Commission (EEOC) issued extensive guidance on the use of arrest and conviction records in employment decisions. Construction company owners, human resources teams and others with hiring responsibilities should review this guidance carefully to be sure that policies and procedures regarding criminal background checks are in compliance.

Five Important Principles 
Always consult with qualified legal counsel to verify that your screening and hiring practices comply with applicable federal, local and state regulations. With that precaution in mind, here are five useful principles that can guide your review, particularly as it relates to the use of criminal background checks:

  1. Treat all applicants equitably. If you check criminal backgrounds on some applicants, you should check them on all applicants. Be particularly careful not to single out certain nationalities, races or religions. This can happen inadver tently if you use criminal background checks for only certain positions that might attract more applicants from protected groups.

  2. Document everything. Maintain detailed written policies and procedures for screening applicants and employees, identifying the specific types of checks that will be performed. These could include drug tests, criminal background checks, credit checks and social media searches, among others. The documentation should also identify critical job requirements for various positions. In addition, it should include a statement of specific offenses that might demonstrate a candidate’s unfitness for a particular job.

  3. Exercise judgment. According to the EEOC, a blanket policy that denies employment to all applicants with criminal records is a violation of Title VII of the 1964 Civil Rights Act. Instead, use a targeted screening process that takes into account the nature and severity of the crime, the amount of time that has passed since the offense was committed, and whether or not the particular violation is relevant to the job being filled. And remember: You may not exclude an applicant based solely on an arrest record. An arrest, unlike a conviction, does not establish that any law was broken.

  4. Give proper notice. If you plan to obtain information from a credit bureau or a criminal background check, you are required to notify applicants in advance. It’s good practice to get candidates’ agreement to this in writing as part of the application.  If you choose to ask candidates directly about past criminal convictions — a practice the EEOC strongly discourages — you must also include language informing them that their admission of a prior conviction will not, by itself, disqualify them.

  5. Be discreet and professional. It’s best to have background checks performed by qualified professionals — either internal HR staff with adequate training or outside firms that specialize in this area. Naturally, you must keep any background information you obtain confidential. Managers and others with hiring authority should be well-trained regarding the appropriate use of such information.

Background checks can be an effective risk management tool, but they must be conducted carefully. Be sure to consult with qualified legal counsel to ensure that all your hiring policies and procedures are in compliance with applicable laws and regulations.

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