Creating a Fair Background Check Policy

Note: Want to skip the guide and go straight to the free templates? No problem - scroll to the bottom.
Also note: This is not legal advice.

Introduction

Background checks are an essential part of making sure that employers hire the right people for the job. This means creating a fair and consistent policy to ensure that all applicants are assessed objectively, as well as protecting employers from potential legal risks. To accomplish this, it’s important to consider what types of information should be requested and how this data should be used.

When constructing a background check policy, employers must first decide which details are relevant to the position they’re filling. If a job requires specific security clearances then they may need to ask about a candidate’s criminal history, whereas if it doesn’t require such clearance then questions about education and work experience will suffice. It is also paramount that these checks are conducted uniformly - no applicant should receive different criteria or have their information judged more harshly than another candidate based on certain attributes.

Once these parameters have been established it is important for employers to make sure that the background check policy is clearly communicated in any documents related to the hiring process - this way candidates will know exactly what will be required of them. And for those who may not have access to legal advice or guidance on such policies, Genie AI has created an open source template library with millions of datapoints showing what constitutes a market-standard background check policy - allowing anyone to draft customized legal documentation without needing a lawyer or having an account with Genie AI.

Creating a fair background check policy is essential in ensuring equal standards and protecting against discrimination during the recruitment process - so taking steps now can help prevent any issues later down the line. For more step-by-step guidance and access our free template library head over to our website today!

Definitions (feel free to skip)

Risk Assessment: An evaluation of potential risks associated with a particular situation.
Jurisdiction: An area or region in which a law or authority has power.
Compliance: Meeting requirements or standards set by a law or regulation.
Data Source: A place or system from which data can be collected.
Retention Period: The length of time that data or records are kept.
Validate: To confirm the accuracy of something.
Encryption: A process of encoding data so that only authorized users can access it.
Relevance: The degree to which something is related to a particular situation.

Contents

• Establish a clear purpose and scope of the background check policy
• Define the types of positions and levels of access to sensitive data that will require a background check
• Outline the criteria that will be used to assess the results of the background check
• Determine what information will be included in the background check and the sources of that information
• Identify the types of records that will be checked, such as criminal, credit, employment, education, and driving records
• Establish the data sources that will be used, such as state and federal databases, online services, and third-party vendors
• Decide who is responsible for conducting the background checks
• Designate an internal team or external vendor to conduct the background checks
• Establish a procedure for evaluating and selecting vendors, if applicable
• Set up a procedure to ensure compliance with applicable laws and regulations
• Review all applicable state and federal laws and regulations
• Create a process to ensure the background checks are conducted in compliance with applicable laws and regulations
• Determine how long the background check results will be retained
• Set a specific retention period for each type of background check
• Establish a procedure for securely storing and disposing of the background check information
• Establish a system to evaluate the accuracy of the information obtained through the background check
• Develop a process to validate the accuracy of the information provided by the background check
• Outline a procedure for responding to inaccurate information
• Develop a process to ensure that the background check results are kept confidential
• Establish a system for securely storing the background check information
• Outline a procedure for providing access to the background check results on a need-to-know basis
• Establish a procedure for responding to negative results from the background check
• Create a policy to guide the decision-making process for employers regarding the use of background check information
• Outline a procedure for notifying the applicant of negative results
• Develop an appeals process for candidates who disagree with the background check results
• Create a process for the applicant to dispute the background check results
• Establish a procedure for responding to the applicant’s dispute
• Create a policy to guide the decision-making process for employers regarding the use of background check information
• Establish criteria for when an employer should consider the information from a background check
• Outline a procedure for documenting the decision-making process for each background check

Get started

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FAQ:

Q: What are the specific legal requirements for a fair background check policy in the UK?

Asked by David on 2nd April 2022
A: In the UK, there are a number of laws that you must adhere to when creating a fair background check policy. The Data Protection Act 2018 (DPA 2018) is the main piece of legislation that you need to be aware of. This legislation sets out the conditions for how organisations can process personal data and requires employers to ensure that they have appropriate data protection measures in place. You must also ensure that any background checks you carry out comply with other relevant legislation such as the Equality Act 2010 and the Human Rights Act 1998. It is important to seek legal advice before creating a policy, as the legal requirements can vary depending on the type of business you have and where you operate.

Q: How do I make sure my background check policy complies with EU law?

Asked by Austin on 15th June 2022
A: If your business operates in Europe, then it is important to ensure that your background check policy complies with EU law. The General Data Protection Regulation (GDPR) is the main piece of legislation which applies to organisations operating in Europe. This law sets out strict conditions which businesses must adhere to when processing personal data, including when carrying out background checks. You must ensure that any data collected is necessary for the purpose of carrying out your background checks and that it is securely stored and not shared with any third parties without explicit consent. It is also important to ensure that any decisions made as a result of the background check are based on objective criteria and not on discriminatory factors such as race or gender. It is advisable to seek legal advice to ensure that your policy complies with all applicable laws.

Q: What types of information can I include in a background check policy?

Asked by Carolyn on 7th September 2022
A: When creating a background check policy, it is important to consider what type of information you will collect and use. Generally, it may be appropriate to collect information such as criminal records, education records, credit history, and references from previous employers. However, it is important to consider whether this information is necessary for the purpose of carrying out your background checks and whether it is relevant for the role in question. If there is no clear business need for collecting this information, then it may be best not to include it in your policy. It is also important to consider any local or national laws which may restrict what type of information you can collect and use.

Q: How can I ensure my background check policy does not discriminate against certain groups?

Asked by Jared on 11th November 2022
A: It is important to ensure that any decisions made as a result of a background check are based on objective criteria rather than discriminatory factors such as race or gender. You should make sure that any questions asked during the process are relevant to the role being applied for and do not discriminate against certain groups. Additionally, all applicants should be given equal opportunity during the process and should not be treated differently based on their background or identity. Finally, if an applicant’s criminal record or credit history does affect their ability to be employed, then employers should provide them with an opportunity to explain their situation before making a decision about their employment status.

Example dispute

Suing for Violations of Background Check Policy

• A plaintiff may raise a lawsuit against an employer if the employer has violated their background check policy.
• Depending on the state, employers may be required to provide written notice to employees and/or job applicants when conducting background checks.
• If the employer fails to adhere to the guidelines of the background check policy, the plaintiff may have a viable case.
• The plaintiff may be able to receive damages if they can prove that the employer’s actions caused them harm, such as lost wages, emotional distress, or other damages.
• The plaintiff may also be able to receive an injunction, which would require the employer to comply with their background check policy in the future.
• Additionally, the plaintiff may be able to receive punitive damages, which are designed to punish the employer for their violation of the background check policy.
• Settlement may be reached through negotiation or mediation. If settlement is not reached, a judge or jury may determine the outcome of the case.

Templates available (free to use)

Background Check Policy
Background Check Policy California
Background Check Policy Florida
Background Check Policy Georgia
Background Check Policy Illinois
Background Check Policy Louisiana
Background Check Policy Massachusetts
Background Check Policy Minnesota
Background Check Policy Missouri
Background Check Policy New Jersey
Background Check Policy New York
Background Check Policy Ohio
Background Check Policy Pennsylvania
Background Check Policy Tennessee
Background Check Policy Texas

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