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Employment Screening – A Legal & Regulatory Minefield – Part 1 – The End!

February 9, 2015 8:28 pm

A failure to thoroughly vet prospective employees can do considerable harm to a business.  Imagine for a moment that an employee commits a serious crime against persons or property and that they did so within the scope of their employment.  Imagine then that there existed a “discoverable propensity” (to commit such acts) and you didn’t even look!

Most employers conduct employee background checks these days.  A failure to do so is hard to defend, therefore, should you be faced with a negligent hiring claim.  At the same time, the legal and regulatory environment for employment screening is growing increasingly complex.

It is no longer enough to conduct employment background checks.  Those checks must be thorough, accurate and, equally important, “legally compliant” – which can (but doesn’t need to) be overwhelming – due to differences in state law.

There is a path to run on, however, that will in most instances deliver the desired result – to thoroughly vet prospective employees while avoiding legal and regulatory landmines.  The answer is to focus on report quality (thoroughness & accuracy) while taking the legal and regulatory high road.

Let’s begin… at The End… with process… and end at the beginning (Part 1)… with the why’s and wherefores (Part 2).


Step 1:  Pre-Screen – select those to interview based on resumes (or an abbreviated application – no SSN, DOB or criminal records questions).

Step 2:  Interview(s).

Step 3:  Identify top candidate.

Step 4:  Extend conditional offer – based on successful completion of the background check.

Step 5:  Collect signed Disclosure & Authorization to conduct the employment background check – require SSN & DOB and ask about criminal history at this time.

Step 6:  Order and receive the employment screening report.

Step 7:  Provide a copy of the employment screening report and CFPB Summary of Rights document to all applicants (hired or not!).

Step 7:  If there is nothing derogatory on the employment screening report and everything else is in order, proceed with the onboarding process.

Step 8:  If criminal records are returned, consider the following before making a decision:

  • The nature of the offense(s) & relevance to the position;
  • When it occurred; and
  • Any mitigating factors.

Step 8:  If adverse action (denial of employment) is anticipated, provide the applicant with a “Pre-adverse Action Notice” and an opportunity to dispute the content of the report or offer mitigating factors.

Step 9:  Issue final “Notice of Adverse Action” as appropriate.


Selecting the right employment screening company and services is essential to achieving the dual objective of carefully screening prospective employees and staying out of court.

  1. Quality Criminal Records Search – The content, accuracy and compliance of the criminal search is critical. Work with your employment screening company to confirm that they:
  • Start with a social security number trace – to help confirm the identity of applicant and provide alias and address information.
  • Rely first on “live” searches. Live searches included those involving direct (electronic) access to the courts or so-call “county-level” court searches – which require that someone actually go to the court.
  • Confirm all criminal database “hits” with a live search.
  • Include AKA’s and additional addresses – disclosed and undisclosed – the source of up to 30% of valid criminal hits.
  • Returns convictions (and outstanding criminal warrants) only – the date of final disposition of which, antedate the report by no more than seven (7) years.
  • Includes national sex offender registry and OFAC searches.
  • Include record matching – no false positives.
  • Exclude records of arrest – or findings in favor of the defendant.
  1. Limit use of “Pre-employment Credit Reports”. Pre-employment credit should only be used when credit standing is clearly pertinent to the position – senior executives, those in finance or others with access to funds or sensitive (personal or proprietary) information.  When or if you order a pre-employment credit report – advise the applicant in writing and include the reasons you believe the information to be “substantially job related” or a bona fide occupational requirement.
  1. Additional services that may be required:
  • MVR
  • Drug Testing
  • Education Verification
  • Credential Verification
  • Etc.


The above process takes the High Road.

Our next post is entitled Employment Screening – A Legal & Regulatory Mine Field Part 2The Beginning!  In it, we will explain the logic behind this “Process” – including applicable provisions in the FCRA.

Visit Moco Incorporated or® for more helpful information regarding tenant and employee screening.



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