When was the last time your organization reviewed its background check procedures? If it has been more than a year, your company might be operating under outdated or non-compliant policies.
Businesses, including those in Oklahoma, must comply with a patchwork of state and federal laws when conducting background checks. Now is the critical time to ensure your screening practices align with current legal standards.
The foundation of your policy
The Fair Credit Reporting Act (FCRA) governs how employers may use consumer reports, including background checks, prepared by a third-party agency. To protect the applicant’s rights, this act requires you to be completely transparent with job candidates when you use a consumer reporting agency for screening.
You must give the applicant clear, written notice stating you plan to request a consumer report for employment purposes. This notice must stand alone and not include other documents.
After providing the notice, you must obtain the applicant’s written authorization before running the check. If information in the report leads you to consider not hiring the candidate, you must follow the adverse action process carefully.
The adverse action process includes providing a pre-adverse action notice and a copy of the report. This allows the applicant time to dispute any inaccuracies before you send them a final adverse action notice.
Non-discrimination and adverse action
Beyond the procedural steps, federal law strictly controls how you use the information in a background check.
The Equal Employment Opportunity Commission (EEOC) ensures employers comply with Title VII of the Civil Rights Act. This key piece of legislation directly forbids businesses from making employment decisions based on a person’s race, color, religion, gender or national origin. Policies that screen out individuals with criminal records may have a disparate impact on certain protected groups.
A blanket policy, for instance, that excludes all applicants with any felony conviction will likely violate Title VII because it statistically harms certain racial or ethnic groups more than others. You must show the policy is job-related and consistent with business necessity.
When you consider a conviction, the EEOC suggests you individually assess three factors: the nature and gravity of the offense, the time passed since the offense or sentence completion and the nature of the specific job.
State and local requirements
Oklahoma’s “ban-the-box” rules apply to state agencies, prohibiting them from asking about criminal history on the initial job application. This rule generally does not apply to private employers in the state, but some municipalities, such as the City of Tulsa, have their own ban-the-box ordinances.
State law also protects applicants regarding expunged or sealed records. You cannot ask about these records, and you cannot deny employment based on a refusal to disclose them. This specific protection means your background screening provider must exclude any expunged information from the report they give you.
Oklahoma requires a special notice for applicants when you conduct a pre-employment background check. This gives the applicant the option to request a copy of the report be sent directly to them at no charge. You need to ensure your forms and procedures meet all these specific requirements.
Compliance with legal guidance is key
The sheer number of interlocking federal and state rules makes compliance a full-time job. Protecting your business from lawsuits and fines requires meticulous attention to every detail of your screening process.
It is best not assume your policy is compliant without professional review. With the right legal support, you can update your current policies, forms and procedures to ensure compliance with the law, safeguarding your business’s financial health.