Understanding Background Checks and Employee Consent

A bad hire does more than leave a bad taste in your mouth. It can be extraordinarily costly. Poor performance, bad morale, lost business, the cost of terminating and replacing a bad employee, and the possibility of lawsuits from all sides means that a single bad hire can cost tens of thousands of dollars. No wonder more and more businesses are turning to Barefoot Professional Investigations for Charlotte employment background checks.

Employment Background Checks: an Executive Summary

Before we get into the legalities of consent and the laws surrounding background checks, let’s take a quick look at the how and why of it. A typical Charlotte employment background check verifies identity and residence, verifies their credit report, and checks the applicant’s criminal history.

The why is equally simple: for many businesses, a background check can uncover adverse credit history, criminal records, dishonesty surrounding education and certifications, and more. This can protect your business from lawsuits and liability, protect your employees, and safeguard the people you serve.

Federal Laws and Employment Background Checks

Background checks in North Carolina are governed in part by two federal laws.

The Fair Credit Reporting Act (FCRA)

Although the Fair Credit Reporting Act (FCRA) was originally drafted as a means of protecting consumer credit information, it also contains provisions that are relevant to the employment background check process. A prospective hire must be informed in writing that a background check will be conducted. The individual will then have the choice of either providing written consent for the background check, or refusing it. If you refuse to hire on the basis of the background check, the subject of the check has the right to see the full content of that check — including items like credit reports, background interviews, and criminal records. 

Title VII

Title VII of the Civil Rights Act of 1964, usually abbreviated to Title VII, prohibits employment discrimination against protected classes (race, religion, national origin, sex, color, disability, and familial status). It’s relevant to employment background checks because the background check cannot be used as a basis for a discriminatory hiring decision. In order to stay on the right side of the letter and spirit of the law, we suggest following EEOC guidance on background checks if your hiring process necessitates screening out those whose background would be a reasonable bar to employment.

North Carolina Laws and Employment Background Checks

The federal laws surrounding background checks can be onerous, but they are at least fairly straightforward. The same can’t always be said for employment law in North Carolina, which is a patchwork of state and local regulations. For instance, while the state does not “ban the box” for employment applications (and background checks), some local jurisdictions do. The picture can be further complicated by a 2018 law expanding Certificates of Relief. We will guide you through the state and local laws governing your background search so that you stay on the right side of the law.

Employees’ Rights

Prospective and current employees have a right to refuse a background check. However, assuming they consent to a check, a prospective or current employee on whom you’ve conducted a background check has the right to see the results of the reporting agency’s work. There’s a reason for this: if there are inaccuracies — for instance, an item on a credit report that’s fraudulent, or has been paid off or discharged, an interview that has mischaracterized the character or conduct of the subject — the subject has the right to contest those items. 

Choosing the Right Agent For Your Background Check

There’s far more to each of these facets than we can adequately cover in a blog post. After all, even the forms used for background checks are subject to federal regulation. Suffice it to say, you’ve likely intuited that this process can be fraught with risk if it’s not handled properly. Get any part of the background check wrong, whether it’s a failure to protect the rights of an interviewee, a failure to comply with the law, or a poorly-conducted background check that misses or omits key information, and you could be facing significant criminal or civil liability. A simple phone call to Barefoot Professional Investigations helps to ensure you start — and end — on the right foot.