Ask the HR Pro
By Casey Bowden Ashley Cuttino, Ogletree Deakins, co-chair COVID-19 Litigation Practice Group
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Ask the HR Pro

Human Resources Tip of the Month

Q: When should I conduct a background check and how can I do it legally?

A: Conducted correctly, background checks are a valuable component of the hiring process. Background checks help you reduce the mystery in the hiring process and hone in on candidates who have a higher potential to align with your needs and your company overall. However, to get the most out of the process, you need to conduct background checks properly.

Background investigations and reference checks are an employer’s principal means of securing information about potential hires from sources other than the applicants themselves. A background investigation generally involves determining whether an applicant may be unqualified for a position due to a record of criminal conviction, motor vehicle violations, poor credit history, or misrepresentation regarding education or work history. A reference check generally involves contacting applicants’ former employers, supervisors, co-workers and educators to verify previous employment and to obtain information about the individual’s knowledge, skills, abilities and character.

In some cases, you also can check a candidate’s credit background, including any history of bankruptcies. However, you only should include this information in a background check if there is a specific vocational need — for example, for people working within finance — or an embezzlement conviction you want to learn more about.

Legal challenges in conducting background investigations. Both federal and state law applies to the area of background check. Various state laws may overlap with relevant federal laws; moreover, states may have additional requirements with respect to obtaining a consumer credit report, controlling illegal immigration, safeguarding information, retaining records and checking criminal histories before an offer of employment.

Federal laws. The Fair Credit Reporting Act (FCRA) regulates the use of consumer credit reports and investigative consumer reports and applies when a third party conducts background checks on behalf of an employer. Proper written disclosure and candidate notification for this type of inquiry is required under the FCRA and must be issued before requesting a credit report.

Employers should take care to ensure that background investigations comply with all applicable equal employment opportunity laws. One risk is that reliance on background investigations alone may result in adverse impact discrimination.

The Immigration Reform and Control Act of 1986 (IRCA) prohibits discrimination based on national origin or citizenship, except for undocumented immigrants, for employers that have four or more employees. The Form I-9 employment verification process stems from IRCA, and while this verification occurs after hire, it’s important to understand that applicants’ national origin or citizenship cannot be used against them if discovered before hire.

Timing. The best time to run a background check during the hiring process is after a conditional job offer has been shared with a candidate, but before their employment is finalized. Some employers like to run checks on all applicants that go through the interview process. The logic is that getting a head start on these screenings will save time once they’re ready to extend an offer, since they already will know if their top pick has been disqualified based on their screening results. However, there are several reasons to challenge this approach.

  • It may be illegal to run a background check if you have not offered your candidate the job. This is primarily a result of ban-the-box laws, which prohibit employers in some states from asking about a candidate’s criminal history as part of the application process. 
  • It may send the wrong message to candidates. Candidates may feel like they are being subject to unnecessary or inappropriate screening considering the stage they are at in the hiring process, or they may assume that a job offer is imminent.
  • Running extra background checks can get expensive.

Employment background checks have a wide range of benefits such as reducing workplace violence, increasing applicant quality, reducing the loss of employees due to dishonesty and helping an employer hire the right candidate. Performed correctly, they are a valuable tool to employers.

— Ashley Cuttino, Ogletree Deakins, co-chair COVID-19 Litigation Practice Group

This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. To learn more, visit ARArental.org/Manage-Business/HR.

Casey BowdenCasey Bowden

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