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3 Key Areas of Background Check Compliance Employers Need to Know

background check compliance

Three-quarters of the US population lives in a jurisdiction with a fair hiring law in place, so if you’re responsible for screening and hiring employees, you need to know how to maintain compliance to avoid costly violations.

While compliance with fair hiring laws, including ban-the-box laws, keeps your organization from violating the law, the underlying goal of “banning the box” is to encourage employers to consider people with criminal records for open job requisitions by evaluating candidates based on their skills and qualifications before asking about criminal history. 

Following are my top three tips to help you keep your organization compliant.

1) Note Whether You’re In A Jurisdiction With A Ban-The-Box Law

To date, 35 states and 180+ counties and cities have passed fair hiring laws. Some apply only to public employers; some apply to both public and private employers; and some apply based on the size of the organization (number of employees). (The US House of Representatives recently passed a federal Fair Chance Act that, if signed into law, would apply to federal agencies and contractors.) 

All ban-the-box laws affect the timing of when an employer can inquire about a candidate’s criminal background, so it’s important to know:

  • Are you in a jurisdiction (city, county, and/or state) with a fair hiring law?
  • If yes, does the law apply to your organization?

Pro Tip: Don’t Forget About The Laws In Your Candidates’ Jurisdictions

If you’re in a jurisdiction where a fair hiring law is in effect, it’s important to know the details of the law for your location, as well as the laws in the jurisdictions where your candidates are located. Put simply, even if your company is not located in a fair hiring jurisdiction, if you’re hiring employees that work in a city, county, or state where a fair hiring law IS in effect, you need to be aware of the law’s requirements and follow them to be compliant and afford the candidate a fair chance.

2) Research Fair Hiring Law Requirements By Jurisdiction

If you’re in a jurisdiction with a fair hiring law and are delaying the timing of the criminal background check, you may think you’re in compliance, but here’s where it gets tricky. Ban-the-box laws are jurisdiction-specific and many include more specific requirements designed to help give people with criminal records a fair chance at employment. Depending on your jurisdiction, these requirements may include: 

  • Administrative requirements, including notices and postings (for example, not using language in job ads such as “clean criminal history” or “no felons”), record keeping, and reporting to enforcement agencies
  • Limitations on the use of certain categories of criminal records (regardless of source), including the type and age of records which may be considered
  • Targeted screens and individualized assessments (applies in more than 70 jurisdictions)
  • Different adverse action requirements, including the content of notices and the time afforded to the applicant before a final adverse action notice is sent

To learn more about fair hiring laws in your state, GoodHire provides a detailed, up-to-date interactive map to help you stay on top of ban-the-box requirements.

3) Be Proactive By Following Ban-The-Box Compliance Best Practices

How can you possibly comply with this complex web of laws? It is tricky, but if you follow these best practices, you’ll be in good shape.

1) Remove prior conviction questions from your applications

Ban-the-box laws will continue to spread and it’s only a matter of time before most states enact a version of the law. Further, since the EEOC views prior conviction questions with suspicion, it’s a best practice to remove or hold off on asking prior conviction questions until later in the hiring process.

2) Provide opportunity for applicants to add context

If your organization insists upon keeping the question in its application, in jurisdictions where it’s legal, be sure to provide space for the applicant to elaborate on any circumstances surrounding the criminal record that he or she feels should be considered. (GoodHire provides a built-in way for candidates to add context as part of our candidate workflow.)

3) Stay abreast of legislative updates

New laws and amendments are cropping up across the country every day, so it’s important to stay on top of the latest developments, on both a state and local level, that may affect your organization. (Hint: set a Google Alert for “ban the box law” to get updates, or follow @goodhiretweets on Twitter.)

4) Utilize a screening partner that is a compliance expert

Work with an FCRA-compliant Consumer Reporting Agency, such as GoodHire, that keeps you up-to-date on background screening compliance and legislation, and also incorporates targeted screens and individualized assessments into its adverse action flow.

When In Doubt, Follow The Most Candidate-Friendly Law

If you’ve reviewed all applicable laws in your jurisdiction and your candidate’s jurisdiction, and find conflicting requirements, the most compliant way to move forward is to apply the most candidate-friendly rules from all. For example, if your state’s ban-the-box law doesn’t have any specific adverse action requirements, but your candidate is in California, follow the required adverse action process and waiting periods mapped out in California’s law.

Stay on top of ban-the-box laws by bookmarking GoodHire’s guide, or visiting NELP.org for updates. Working with an accredited, FCRA-compliant background screener that offers compliance expertise will help you meet your fair hiring compliance objectives. You can also tune into the webinar on How to Scale While Maintaining Fair Hiring Practices to implement key legal and compliance requirements in tandem with meeting hiring goals in the coming year.

Disclaimer: GoodHire provides resources for educational purposes only. It does not offer legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.