CareNotes

Stay Legally Compliant with Background Checks

This is a guest blog article from OHCA business partner OPENOnline, which assists employers in providing comprehensive background screenings. For more information, including member discount rates or to schedule a training, contact OPENonline.

The information contained in this article is not legal advice. For legal advice, please seek legal counsel.

Employment screening can be beneficial for all industries, but is vital in the healthcare sector. At the same time, fully understanding the process and staying compliant with the law is just as essential. When obtaining background checks from a consumer reporting agency, an employer should be aware of the requirements imposed under the Fair Credit Reporting Act (FCRA) and similar state laws.

Decide What Data Matters
Certain information is not relevant to the job, and considering all data may violate standards set by the Equal Employment Opportunity Commission (EEOC) and the FCRA. For example, under the EEOC an employer is not allowed to base an employment decision off origin, race, gender, religion, age, or disability and the FCRA imposes requirements on the use of certain data.

However, other information is key to determining a person’s qualifications for a job. For example, a criminal background check is crucial to ensuring a safe environment in the healthcare industry. Many states have also enacted legislation regulating background checks for healthcare employers. You should consult with your legal counsel to establish a background check policy that complies with state and federal laws.

Increase Visibility
Background screenings aren’t meant to be a secret. While employers should respect a candidate’s privacy, they should also be transparent about what information will be obtained as part of the background check process. In fact, the FCRA requires employers to communicate with candidates about this process.

First, employers must tell potential hires what data they’ll be considering in a written format. Specifically, individuals have to sign off on the background screening through disclosure and authorization forms as required by the FCRA. Beyond that, candidates can also ask questions about the process.

The FCRA requires employers to tell individuals what adverse information they find about them and if they will be using that information to deny them employment. Specifically, employers must provide in writing a pre-adverse action letter that includes the name, address, and telephone number of the consumer reporting agency; a copy of the report; and the FCRA Summary of Rights. Candidates must be given an opportunity to dispute the claims. After a reasonable amount of time (minimum of 5 days but 10 is suggested), the employer must send out the final adverse action letter and summary of rights if they are not moving forward with the candidate because of the background check.

Avoid Application Litigation
Consulting with legal counsel that is well versed in employee matters is a solid business practice. Employers who ensure they have necessary procedures and paperwork in place can effectively avoid issues down the road. The legal process was designed to balance employee rights with business needs, and following protocol can benefit all parties involved.