No matter the size of your operation, hiring and retaining qualified and honest employees is critical. A recent study found that 36.5% of employment verifications revealed inconsistencies and 14% provided false or inconsistent information about education.
That means every employer has a good reason to undertake background checks of all potential employees before making hiring decisions, particularly for positions involving confidential or sensitive information or when applicants are seeking managerial or supervisory positions. Sometimes the law requires employers in certain industries to conduct background checks. Background checks may also help prevent charges of negligent hiring.
Before beginning a, obtain the applicant’s full name, current address, Social Security number, work history (including names and addresses of former employers), job titles, dates of employment, supervisor references, reasons for leaving, several personal references and the applicant’s written consent to contact references.
Whether conducting your own investigation or using an agency, use this information to obtain the applicant’s credit, educational, employment and criminal conviction (but not arrest) histories, driving and military records and character or reputation information. Be careful, however, never to ask about the applicant’s protected characteristics: race or gender, for example.
FCRA and applicant rights
Although you can conduct aon your own, it may be more expedient to use a consumer- or credit-reporting agency. Just remember that if you use material obtained from a consumer report, you must comply with the federal (FCRA) (see box below).
If what you learn leads you to decide not to hire the applicant, you must inform him or her that you made your decision based on the information in the consumer report. You also must provide a summary of the applicant’s FCRA rights. Although the FCRA does not require any set amount of time between the pre-adverse action notice and the adverse action, it is a best practice to provide a period of a few days to allow the applicant to explain.
Failure to comply with the FCRA provisions can subject employers to damages, including actual damages, punitive damages, costs and attorneys’ fees. Employers also may be liable for fines and/or imprisonment if they knowingly and willfully obtain a consumer report under false pretenses.
GCIC offers conviction reports
In Georgia, employers can obtain arrest and conviction records directly from the Georgia Crime Information Center (GCIC).
The applicant’s fingerprints or his or her signed consent on the GCIC form must accompany the employer’s request; or the information may be requested electronically without the consent form or fingerprints as long as the information provided is sufficient to identify the person whose records are sought.
Information provided in response to such requests (e.g., unaccompanied by fingerprints or signed consent) is limited to in-state felony convictions, pleas and sentences. Local criminal justice and law enforcement agencies in Georgia (such as municipal police departments) may disseminate criminal history record information under these same conditions.
There’s an advantage to getting the information directly from the GCIC. Georgia employers that obtain an applicant’s criminal history record information from the GCIC or a local criminal justice or law enforcement agency do not have to comply with the requirements of the FCRA.
The types of reports covered by the FCRA include criminal history record information, and the statute contains no express exemption for reports obtained from government agencies. However, the Federal Trade Commission, the agency responsible for enforcement of the FCRA, has taken the position that agencies such as GCIC are not “consumer reporting agencies” under the FCRA, meaning that the statute is inapplicable to reports directly obtained from such agencies.
That doesn’t mean, however, that you don’t have obligations to the applicant. Georgia law imposes certain FCRA-like requirements on employers basing personnel decisions on information obtained from the GCIC. Such employers must notify the affected applicant or employee of all information pertinent to the decision. This information must include the fact that a record was obtained from the GCIC, the contents of the record and the effect the record had on the employment decision. Failure to provide such information is a misdemeanor.
By incorporating these practices, employers will obtain the information needed to make sound hiring decisions and avoid violating federal and Georgia laws.
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