For many of us at some point, we are going to be faced with having to give a candidate bad news about their background check results and candidacy with our company, in other words, we are rejecting you. Often we try to soft-sell that bad news by saying “We have a candidate who more closely matches our needs.” However, depending on how you set up the hiring scenario, that may be a lie. What then?
When a Background Check Just Doesn't Check Out...
Employers do a variety of things with background checks, from having a statement on the application asking about convictions, to not checking until after the candidate has been hired. Both of those options are not good ones in my opinion. The first one goes against the current trend of “ban-the-box”, the movement to eliminate consideration of a candidate’s criminal background in your employment decision. According to the National Employment Law Project, 11 states and 60 municipalities have enacted ban-the-box ordinances prohibiting employers from asking about arrest records at the time of application. Granted most of these prohibitions are on government agencies but not all are. There are some prohibitions on private sector employers as well in some states and cities.
The second option, of waiting until the person is hired, is foolish. You may as well not do it at all and save the money. Of course, that is foolish too. You have an obligation to your employees and customers not to hire someone that could potentially harm them. This requires doing the background check before hire. The question becomes at which time? Many companies today wait until they have selected the final candidate and then make an offer contingent upon successfully passing a background check. That is all well and good until you come across a candidate that does not pass, which then brings us back to the question in the title. You have now lost the option of saying to that person “We have found a candidate who better meets our needs.” You would be lying in that situation.
Document Your Decision-Making
The EEOC has provided guidance for employers to help them make decisions about employees who are found to have criminal records. They suggest using an individualized assessment for each situation. This means you talk to the candidate and discover the circumstances about their personal situation. Just off-handedly rejecting them may put you into the dangerous territory of possible discrimination. These individualized assessments need to include the following:
- Additional facts or circumstances surrounding the offense.
- Age at the time of the offense or the time of release.
- Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct.
- Employment history before and after the offense.
- Rehabilitation efforts.
- Employment or character references along with any other information regarding fitness for the particular position.
All of this requires talking to the candidate. Roy Mauer, writing for SHRM, suggests that you set up some sort of matrix guide for the positions in your company to guide your decision-making in this type of situation. This way you can protect the company from charges of discrimination by showing a reasoned, business decision for the action you have taken.
Don't Forget the FCRA
Of course, if you do decide to reject the candidate on the basis of the criminal background check, don’t forget to comply with the requirements of the Fair Credit Reporting Act. This is a two step process. First, you have to inform them that a negative decision might be made. You have to provide them with the following:
- A copy of the consumer report that was obtained and relied upon to make the decision.
- A copy of the FCRA’s A Summary of Your Rights Under the Fair Credit Reporting Act.
- The name, address and phone number of the background screening company that provided the screening report.
Then wait for them to respond. If no adequate response to the background check is given, then you have to send a final notice that the decision has been made not to hire them. The second notice must include:
The notice must include:
- The name, address, and phone number of the consumer reporting company that supplied the report.
- A statement that the company that supplied the report did not make the decision to take the unfavorable action, and can’t give specific reasons for it.
- A notice of the person’s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days.
It is a tough decision to make, and an even tougher conversation to have with a candidate – but you have to be guarded about blowing this off. Following the EEOC guidelines and the FCRA regulations will keep you legal and may help you get the good employee you originally wanted.
For additional, related insights, check out:
For more from Michael Haberman, check out his articles on Omega HR Solutions and The SHRM Blog.