by the EEOC in the guidance discussed
above, which support a finding of:
■ ■ “Job-related and consistent with
business necessity;”
■ ■ An individualized assessment of the
applicant; and,
■ ■ Implementation of “Best Practices”
patterned on the list provided by
the EEOC.
Determine whether FCRA requirements
apply to your background investigations
Remember, the FCRA only applies
to CRAs and the companies that
obtain reports from these agencies.
Accordingly, in-house background
checks that do not use outside databases are generally not governed by the
FCRA constraints (i.e., prohibiting arrest information beyond seven years).
Even if an employer engages in the use
of CRAs for its background checks,
an employer should ensure that both
it and the agency are following proper
procedures, including the reporting of
conviction records.
Ensure proactive measures are
consistent with the objectives
of the organization
The culture of the organization
may determine how aggressive an
employer and the leadership act
in analyzing the security concerns
within an organization. For example, some organizations may
place a high priority on protecting
confidential information such as
trade secrets or classified information. Other organizations may prefer
to take a less aggressive approach
on pre-screening employees. Legal
counsel should ensure that security
professionals and HR understand
the culture of the organization and
that any proactive measures such as
pre-screening are consistent with
the organization’s objectives.
Know state and local laws
State and local laws vary widely with
regard to limits imposed on background checks. Accordingly, employers
should be aware of the applicable laws
in each state in which their companies
conduct business. The US government’s requirement for an insider
threat program for cleared facilities
may cause confusion for an organization that operates in multiple states.
Legal counsel should ensure collaboration
among HR, security, and legal counsel
Refer hiring decisions involving arrest
and conviction information to, or
collaborate with, senior HR personnel
and legal counsel who have the experience and knowledge to analyze the
type of investigation required by federal, state, and local laws. Ensure that
the security, HR, and legal departments consider the security clearance
process, including due process that
