A Background Check Found a Record. What Should Employers Do Next?
When something appears on a candidate’s background check, an employer’s first reaction may be concern. But finding a criminal record or other potentially negative information does not automatically mean the candidate should be removed from consideration.
Background screening is meant to provide employers with information that can help them make better decisions. It is not necessarily a simple pass or fail process. Before making a decision, employers should consider the context surrounding the information and whether it is actually relevant to the position.
Not Every Record Carries the Same Risk
A record that is concerning for one position may have little relevance to another. For example, a driving related offense may deserve greater consideration for an employee who will regularly operate a company vehicle than for someone working in a position with no driving responsibilities.
Employers may need to consider factors such as:
- The nature and seriousness of the offense
- How much time has passed
- Whether the conduct relates to the responsibilities of the position
- The candidate’s history since the incident
- Applicable federal, state, and local requirements
The goal is to evaluate the information in context rather than focusing only on the existence of a record.
An Arrest Is Not the Same as a Conviction
Employers should also understand what the information on a background report actually represents.
An arrest alone does not establish that someone committed a crime. Charges may have been dismissed, reduced, or never prosecuted. This distinction is important when reviewing criminal history and is another reason employers should avoid making immediate decisions based solely on seeing a record.
Consistency Matters
Employers should have a consistent process for evaluating background screening results. Written policies can help establish what types of information are relevant to different positions and how findings should be reviewed.
Consistency does not mean that every candidate with a similar record must receive the same outcome. The circumstances and job responsibilities can be different. Instead, employers should apply the same evaluation standards and decision making process to candidates in similar situations.
Remember the Adverse Action Process
When an employer uses a background report provided by a Consumer Reporting Agency and is considering taking adverse action based on information in that report, the Fair Credit Reporting Act requires specific steps. Before making a final adverse decision, the employer generally must provide the candidate with a copy of the background report and a summary of their rights. This gives the candidate an opportunity to review the information and dispute anything they believe is inaccurate or incomplete.
If the employer ultimately decides to move forward with the adverse decision, additional notice requirements generally apply. Employers should also be aware that state and local laws may impose additional requirements.
A Finding Is Information, Not a Decision
Background screening should help employers understand potential risk, not automatically eliminate every candidate who has something in their history. Sometimes a finding will be relevant enough to affect a hiring decision. Other times, after considering the circumstances, an employer may determine that it has little connection to the candidate’s ability to perform the job. The important part is having a thoughtful and consistent process.
A background check can uncover the information. The employer still has to determine what that information means for the position.
***This article is intended for general informational purposes only and should not be considered legal advice.***