May 29th, 2015 | Sterling

Recruitment Essentials: Best Practice Tips to using Background Screening Results

After having meticulously tailored a global background screening program to local laws and regulations, organisations must ensure that they use the results of background checks in compliance with local data protection and employment laws. Below are the three top tips for organisations when using background screening results.

1 – Only use relevant results

Just because a check is legally permissible in a particular country does not mean that all the results can be used when making a hiring decision.

Example 1:
Unless a candidate has applied for a job where driving is integral to the role, an employer should not reject the candidate solely on the basis of a criminal record check that reveals a traffic offence. Doing so may violate local laws as the information has no bearing on the candidate’s ability to perform the job.
Organisations must also consider whether local laws restrict how they may use information that is revealed during the course of a background investigation.

Example 2
The UK Rehabilitation of Offenders Act 1974 gives individuals the right not to disclose the details of ‘spent’ criminal convictions (i.e. a conviction which, after a ‘rehabilitation period’, is considered to have never occurred). Therefore, if a candidate unwittingly reveals ‘spent’ convictions, the employer may violate the Rehabilitation of Offenders Act 1974 by basing a hiring decision on this restricted information.

2 – Involve the candidate before making a negative recruitment decision

Many organisations fail to notify the results of a background check to the candidate and proceed to make a negative recruitment decision. Similar to the Fair Credit Report Act’ pre-adverse action process in the United States, under most data protection and privacy laws in the rest of the world, individuals have the right to dispute the accuracy and completeness of any inaccurate information held by an organisation, including the results of a background check.

Depending on local employment laws and regulations, if an organisation denies employment on the basis of inaccurate or incomplete information, a candidate may have a right of action against the employer. To avoid the potential risk of costly and damaging litigation, organisations must ensure that the candidate is given the opportunity to dispute the results of the background check.

3 – Do not reveal the reasons behind the final recruitment decision

In many countries, there is no specific requirement for an employer to disclose that the discovery of a negative finding in a background check investigation has led to the candidate being rejected for the role. However, it important that the reason for rejecting the candidate cannot be construed as discriminatory on grounds established in local employment and anti-discrimination laws. It is important to remember that any personal information about a candidate (including opinions on interview performance) may be disclosable to the candidate as part of a subject access request.

Organisations must also consider the circumstances around the background check, such as whether the candidate was offered a conditional offer of employment based on the completion of a successful background check, or whether the background check was performed post-hire. These considerations will determine the best way to handle rejecting a candidate or dismissing a current employee.

For a further look at the basics of getting the most from your background screening programme make sure you listen to our recent webinar recording ‘Recruitment Essentials: How to avoid a bad hire in 2015’

The information contained in this post should not be construed as legal advice, guidance or counsel. Employers should consult their own attorney about their compliance responsibilities under the applicable local law. SterlingBackcheck expressly disclaims any warranties or responsibility for damages associated with or arising out of the information provided and shall not be liable for any damages resulting from any use of the information contained in this post.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.