What Do Corporate Counsels Need to Know about Background Checks?

Employment Screening Resources (ESR) Founder and CEO Attorney Lester Rosen

Written By ESR News Blog Editor Thomas Ahearn

Attorney Lester Rosen, the founder and chief executive officer (CEO) of Employment Screening Resources® (ESR), has written an article titled “15 Things Corporate Counsels Need to Know about Background Checks” since corporate counsels may encounter the topic of background checks in three general situations.

First, counsel may be asked to review the agreement, authorization, and disclosure forms for a screening program. Second, counsel may be asked to audit a screening and hiring program for legal compliance and due diligence. Third, counsel may be needed because of a situation that needs to be dealt with immediately.

“Background screening, as with most processes connected to employment, is intensely subject to legal considerations and is the subject of legislation, litigation, and regulation. In fact, the legal landscape changes continuously,” wrote Rosen, author of “The Safe Hiring Manual,” a comprehensive guide to background checks.

The article is not given or intended as legal advice but is offered for educational purposes only to aid a corporate counsel’s involvement with background checks since a screening firm cannot give legal advice to employers on any issues. Here are 15 things a corporate counsel should be aware of concerning background checks:

  1. There is no standard industry agreement for screening services, but under the Fair Credit Reporting Act (FCRA), there is legally required language that must be in an agreement.
  2. The risk of litigation against employers for violation of the FCRA, including class action lawsuits, require careful attention to forms and procedures.
  3. Although background checks are very accurate overall, the structure of available information means that even the best screening firms at some point will have a reporting error.
  4. A screening firm cannot insure or indemnify an employer against anything an employee may do.
  5. A screening firm also cannot guarantee turnaround time since a significant portion of the process is out of a screening firm’s control.
  6. Not all background firms are created equally—there are several best practices and certifications that a corporate counsel can look for, especially when it comes to legal compliance and privacy.
  7. The use of criminal records is highly regulated and legal compliance with state laws, “Ban the Box” laws, and the U.S. Equal Employment Opportunity Commission (EEOC) Guidance on the use of criminal records is critical
  8. Specific searches, such as credit reports and social media review, can be problematic for employers and have specific rules.
  9. There are certain things, such as mandatory onsite inspections before receiving employment credit reports, imposed by private firms that are not in the control of a screening firm.
  10. Your organization’s best defense against negligent hiring is well thought out hiring practices that occur even before the background check.
  11. Privacy and data protection are becoming the new hot button issues in the United States.
  12. International background screening can be complex since international privacy rules are becoming more important, and each country is an adventure.
  13. Screening post-hire, especially “continual” or on-going screening, creates risk for an organization as well as opportunity.
  14. Be aware of issues concerning background checks on the expanded workforce, such as temporary workers or vendors.
  15. A screening firm may require certain changes to processes or procedures that are not part of the business terms to be relayed by email, as opposed to formal notice under the agreement.

The article by Rosen gives a brief overview to increase awareness since each of the issues discussed can be complex depending upon the exact situation involved. The complete article is available on LinkedIn Pulse at www.linkedin.com/pulse/15-things-corporate-counsels-need-know-background-checks-lester-rosen/.

Rosen was the chairperson of the steering committee that founded the Professional Background Screening Association (PBSA) – formerly called the National Association of Professional Background Screeners (NAPBS) – and served as the first co-chairman. In 2019, Rosen was awarded the PBSA Lifetime Achievement Award.

Rosen founded Employment Screening Resources® (ESR), in 1997 in the San Francisco, California area. He is a frequent presenter nationwide on screening issues and his speaking appearances have included numerous national conferences and webinars. He has also qualified and testified in court cases as an expert witness.

Employment Screening Resources® (ESR) – a leading global background check provider – is accredited by the PBSA, undergoes annual SOC 2® Type 2 audits, and was named to 2019 HRO Today Magazine’s Baker’s Dozen for Enterprise Pre-Employment Screening Services. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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