Employment Screening Laws & Background Checks Question & Answer

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Contact: Jane McFadden
Client Advocate
Phone: 800-969-4300
Email: JaneM@hrprofile.com
WEBINAR Q&A TRANSCRIPT
Webinar Title: Do You Know The Law? Criminal and Other Background Checks in
Employment Screening.
Presenter: Sarah Clay Leyshock, Taft Law Firm
Date: March 18th
2015
Note: The following answers are transcripts from the live webinar and not
intended as legal advice.
 IF AN APPLICANT CHECKS A BOX ON THE HIRING WEBSITE- DO THEY ALSO NEED TO SIGN A
PAPER RELEASE?
 The FCRA needs to be complied with. It can be on the website - an electronic signature by
the applicant or notice to the applicant by the employer can count as giving the required
consent or notice under the FCRA. The employer will just need to retain a record of that
signature, and that the website contained or delivered the required FCRA notices.
 IF THE PERSON DOES NOT RESPOND TO THE PRE-ADVERSE ACTION NOTICE, DOES THE
EMPLOYER HAVE A RESPONSIBILITY TO REACH OUT, OR CAN THEY MAKE A CALL BASED
ON WHAT THEY KNOW?
 With regard to the pre-adverse action notice, your obligation is only to provide the notice to
the applicant at the address provided by the applicant with copy of the report and A
Summary of Your Rights Under the Fair Credit Reporting Act that tells them how to dispute
information on a report that is inaccurate or incomplete. If you do not receive a response
from the applicant, you do not have to follow up with the applicant to confirm that the report
is correct.
 HOW DO YOU ACTIVELY EVALUATE THE SITUATION IF THE APPLICANT INDICATES THERE
IS NO CRIMINAL HISTORY, BUT THE BACKGROUND CHECK SHOWS MULTIPLE
CONVICTIONS?
 Follow the FCRA requirements to make sure there is no error. If the report reveals
dishonesty by the applicant and there is no error on the application, there are sufficient
grounds to disqualify the applicant from the position based on their dishonesty if you also
disqualify applicants who provide other types of false or dishonest information. In that
case, this is not a decision based on the criminal record. You will need to document that
fact and retain a record of the reason for your decision to avoid having this applicant’s
exclusion count toward any potential disparate impact claim.

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 IS THERE A CONSEQUENCE FROM HAVING THE APPLICANT PROVIDE THEIR DATE OF BIRTH
ON EMPLOYMENT FORMS?
 Are you asking if that creates an age discrimination issue? Asking for date of birth on an
application generally does not constitute age discrimination by itself. Age discrimination in
employment is prohibited by a variety of federal and state laws. Because you never want an
applicant to think that you are going to use age information for an improper reason—such
as to exclude them from consideration from employment—many employers include on the
application an Equal Opportunity statement or policy. This helps applicants understand that
age or date of birth is used only for legitimate business reasons, such as to confirm age for
position eligibility (i.e. that the applicant is over 18), conduct a background check, or to
confirm the applicant’s identity. As long as it is not used for improper reasons and it is
consistent with business necessity, asking for age or date of birth on an application does not
violate federal anti-age discrimination laws.
 IF A REPORT COMES BACK WITH THE DISPOSITION OF DEFERRED OR SET ASIDE, HOW DOES
AN EMPLOYER EVALUATE THAT INFORMATION?
 It’s not a conviction yet, and it might not be. For purposes of preparing your affirmative
defense for a disparate impact claim, you should treat it as an arrest. So, if you are going to
exclude that individual from consideration based on the disposition of a “deferred” or “set
aside” conviction, you will need to do an additional inquiry to find out whether the record of
conviction (that was ultimately deferred or set aside) actually reflects the applicant’s
conduct. Then, use the targeted screen and individual assessment to determine whether the
conduct actually engaged in is sufficiently connected to the duties of the position such that it
is a business necessity to exclude the candidate based on that past conduct. This may take
some additional investigation of publicly available information, such as, obtaining the police
report or hearing transcripts. You cannot evaluate that candidate the same way as a
conviction - you have to rely on the underlying conduct, not the arrest and conviction that
was ultimately set aside or deferred.
 IF A RECORD SAID THE PERSON HAS AN OUTSTANDING WARRANT, HOW SHOULD THE
EMPLOYER HANDLE IT?
 If excluding the applicant based on the warrant, you will need to treat it as an arrest and
find out what the warrant is for, so you can run that charge through your targeted screen.
Next, you should make an additional inquiry to determine what the conduct was at issue that
led to the arrest or warrant. Finally, you should conduct an individualized assessment to
determine if that applicant’s conduct is related to the job in question, and if that would be
consistent with business necessity in that case to dismiss that applicant from consideration.
The existence of the warrant alone cannot be the basis for disqualification. You probably do
not have any obligation to notify local police that the individual has applied for employment,
but this could vary depending on your business and state or local law.
 IN THE STATE OF CA, HOW FAR BACK IN CRIMINAL HISTORY CAN THE POTENTIAL
EMPLOYER GO FOR INFORMATION RELATED TO CONVICTION?
 Sarah is only licensed to practice in KY and OH. However, according to California Civil
Code 1786.18, an investigative consumer reporting agency can provide records of
convictions of crimes for seven years following the disposition or release. The
reporting/review period may be longer when required by another law.

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 HOW FAR DOES THE EMPLOYER NEED TO SEARCH DURING AN INDIVIDUALIZED
ASSESSMENT? REQUEST COURT RECORDS OR WRITE UP OF WHAT HAPPENED DURING THE
CASE?
 How far you need to search to conduct an individualized assessment depends on the reason
for excluding the applicant. If it is a criminal conviction (or arrest, diversion) closely
connected to the duties of the job or there is a “sufficiently tight nexus” between the
conviction (or conduct leading to arrest or diversion) you will need to do additional research
to corroborate that the exclusion is a business necessity in that particular case. There is no
clearly defined minimum standard for conducting an individualized assessment. The EEOC
advises that, to conduct an individualized assessment, an employer should inform the
applicant that he or she may be excluded because of past criminal conduct and offer the
applicant an opportunity to demonstrate that exclusion is not job related and consistent with
business necessity in his or her case. Information that the applicant can provide that may
support this conclusion may include that the applicant was not correctly identified in the
criminal record, that the record is inaccurate, certain facts or circumstances surrounding
the offense or conduct; the number of offenses for which the individual was convicted; older
age at the time of conviction, or release from prison; evidence that the individual performed
the same type of work post-conviction with the same or a different employer with no known
incidents of criminal conduct, the length and consistency of employment history before and
after the offense or conduct, rehabilitation efforts (such as education or training),
employment or character references, other information regarding fitness for the particular
position, or whether the individual is bonded under a federal, state, or local bonding
program. If the applicant does not supply information in response to this opportunity, you
should document that fact, and you may make the decision in accordance with your targeted
screen and individualized assessment based on the information that you have.
 IF YOU SIMPLY FIND A BETTER APPLICANT DO YOU NEED TO FOLLOW ADVERSE ACTION?
FOR EXAMPLE, YOU HAVE 10 CANDIDATES APPLY, RUN BACKGROUND CHECKS ON ALL OF
THEM, AND 1 OF THOSE APPLICANTS COMES BACK WITH A RECORD. YOU CHOOSE TO HIRE
THE BEST APPLICANT WHO DOESN’T HAVE A RECORD. DO YOU NEED TO FOLLOW
ADVERSE ACTION ON THE APPLICANT WITH THE RECORD, EVEN THOUGH YOU HIRED THE
BEST APPLICANT?
 To be safe, you should following the FCRA procedures for adverse action based on
information contained in the report. In addition, you should document that entire pool of
applicants and the reason the applicant you wish to hire is better than all of the other
candidates. Individualized assessment of the 1 candidate with a criminal history may not be
necessary if the reason for disqualifying him or her is not because of the criminal conviction,
but because another applicant was better qualified based on skill, experience or other
criteria unrelated to criminal background. Retain that information so that in the event, say 5
years down the road, there is statistics suggesting a potential disparate impact by your
background check policy, you’ll have the documents and the notes to show it wasn’t a
conviction issue in this case, but rather a set of circumstances where there was a better
qualified candidate. Document, Document, Document. Again, to be safe with regard to the
FCRA, you may want to send an adverse action notice, even though your decision is not
based on the criminal record report.

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 HOW DO YOU SUGGEST TYING A VIOLENT CONVICTION TO SOMEONE’S ROLE? WHEN I’VE
DONE INDIVIDUALIZED ASSESSMENTS, THERE’S ALWAYS A STORY TO GO ALONG WITH IT
TO MAKE ME BELIEVE IT WAS AN ISOLATED INCIDENT. IT SEEMS TO BE A TOUGH SPOT FOR
EMPLOYERS. EITHER DON’T HIRE THE PERSON OR RISK EEOC CHARGE, OR HIRE THEM
AND RISK VIOLENCE IN THE WORKPLACE.
 The most important piece for supporting your legitimate business reason for exclusion is
going through the individualized assessment and documenting why this particular
individual’s violent conviction makes him not the best candidate for the position. There are
many reasons that may be sufficient to exclude someone after the individualized assessment.
Your best defense is to evaluate the applicant’s response to your pre-adverse action notice.
Compare the factual circumstances surrounding the incident that led to the conviction to the
type of workplace you have, the essential functions of the job, and what you know about your
work environment. Use those details from the applicant to determine how sufficiently tight of
a nexus his or her conviction (or conduct leading to arrest) is with this particular job and
your particular workplace. If that type of conviction is one that, if it occurred again, would
have a particularly negative impact on your workplace or if similar illegal conduct has been
or could be facilitated by certain circumstances related to this job position or your
workplace, you may be justified in your exclusion. In addition, where the person’s credibility
is lacking, where there is a pattern or multiple incidents, or where the applicant has made a
statement showing a lack of remorse or rehabilitation, there may also be sufficient reason
for excluding him or her based on a record of a violent conviction. On the other hand, if the
nexus between the violent conviction of this applicant and the job is more attenuated, there
have been rehabilitation efforts, and/or there was been a long period of employment and
non-involvement with the judicial system since the conviction, then there is a bigger risk of
this applicant’s exclusion contributing to a disparate treatment claim.
 IF THE APPLICANT WAS ARRESTED, CHARGED, THEN WENT THROUGH REHAB OR A 1ST
CONVICTION PROGRAM, THE COURT CASE WAS DISMISSED 3 YEARS LATER BECAUSE THEY
WENT THROUGH THAT PROGRAM, BUT IT SHOWS UP ON THE RECORD BECAUSE IT WAS
WITHIN 7 YEARS, WHAT IS THE ACCEPTABLE LINE? IS THE EMPLOYER RESPONSIBLE FOR
GOING BACK, ARE THEY ALLOWED TO USE THAT AS A REASON NOT TO HIRE?
 If the conviction is dismissed, you should not use the fact of a prior conviction to make a
hiring decision. However, if you have information regarding the conduct that occurred, you
may choose to consider that. In that case, you should treat the dismissed conviction like an
arrest. Find out what conduct actually occurred and analyze the credibility and
circumstances of the applicant related to that conduct to determine if there is a sufficiently
tight nexus between the individual’s conduct and the job. If there is a tight connection there,
and it is job-related and consistent with business necessity to exclude that individual based
on the underlying conduct, then you can do so. Certainly, you will be in a much stronger
position to defend against an disparate impact claim if you conduct an individualized
assessment. So if you decide that the conduct underlying the dismissed conviction is
potentially worthy of exclusion, you should go ahead and make the additional effort to obtain
a response and explanation from the applicant to determine whether there has in fact been
sufficient rehabilitation through the court sponsored program. It is fair to evaluate
credibility and attitude of the applicant when discussing the fact that they have been through
some sort of diversion program or successfully completed a court required recovery
program.

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 IF AN APPLICANT LIES ABOUT WORK HISTORY OR EDUCATION, DOES THAT REQUIRE
ADVERSE ACTION?
 That is entirely up to the employer if they wish to hire or exclude someone who has been
dishonest. I think in most cases, employers find that to be a red flag and do not hire based on
dishonesty. If they choose not to hire that applicant based on intentionally dishonest or
derogatory information provided on application that is contradicted by the background
check, the FCRA procedures for taking an adverse action must be followed to ensure there is
no mistake on the report.
ORIGINAL WEBINAR ABSTRACT:
HR ProFile is proud to host attorney Sarah Clay Leyshock of the Labor and Employment Group at Taft Law as
the presenter in the upcoming FREE Webinar, Do you know the Law? Using Criminal and Background Checks
in Employment Screening; to be held on Wednesday, March 18th
, 2015 at 2PM EST. This webinar is part of HR
ProFile’s monthly webinar series and on-going commitment to communicate the latest and most innovative
topics, compliance changes, trends, and best practices within the Human Resource Industry. This webinar will
concentrate on incorporating competency models into HR’s hiring process and throughout their organization to
drive the business strategy.
Key Take Away’s from this webinar include:
1) What Background Checks are being routinely run by Employers during the Hiring
Process.
2) EEOC Laws and Regulations for Employers regarding Background Checks and how
those laws have changed since it’s inception in 1964
3) Employers Best Practices to Avoid and Defend Negligence and Discrimination Claims.
Sarah is an Of Counsel attorney in the Cincinnati office of Taft where she is a member of
the Labor and Employment Practice Group. She focuses her practice on representing
employers and regularly advises business owners, in-house counsel, and key human
resources personnel on a variety of employment-related matters. Sarah graduated magna
cum laude with a B.A. in communication arts and psychology from Georgetown College
and received her J.D. from Northern Kentucky University, Salmon P. Chase College of
Law. http://www.taftlaw.com/attorneys/843-sarah-leyshock
About HR ProFile, Inc.
HR ProFile, Inc. is a full-service, trusted, industry leader with over 20 years of experience in all areas of Human
Capital Management and Employee Screening. We provide Background Checks, Drug Testing, Criminal &
Court Checks as well as Reference & Education Verification to clients in all industries Nationally and
Internationally. We partner with our clients to ensure best hiring practices and Fair Credit Reporting Act
(FCRA) compliance to HR professionals who outsource employee screening. HR ProFile provides market
leading innovations, customized and scalable solutions and pricing, as well as unparalleled personal and
professional customer service. Visit us at http://www.hrprofile.com/

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