How to Avoid the Major Traps of Running Background Checks 18 Nov 2019


No one is immune to background check lawsuits — not even the federal government. How did the federal government end up in the middle of two background check lawsuits?

The government is in charge of running background checks on potential gun owners. Twice, the government missed convictions that would have disqualified individuals from buying firearms. These overlooked people were able to buy guns and use them to commit mass shootings.

Background check mistakes often have devastating consequences. How can you protect your applicants, clients, and business from screening mistakes? Let’s learn about three common background check traps companies fall into. Then, we’ll see how you can avoid them.

Trap 1: Violating Screening Laws

Numerous background check laws exist. While you may expect them at the federal and state level, background check laws are also found on the books of cities and towns. Keeping up with multiple regulations is tough but essential. Breaking a single screening law can drag you into an expensive lawsuit.

Delta Airlines paid $2.3 million to settle a background check lawsuit. What was the problem? The Fair Credit Reporting Act (FCRA) requires that employers give applicants a stand-alone background check waiver. These waivers can’t include additional information.

Delta violated this law. The airline put so much information in the waiver that applicants didn’t understand what it was for. While the amount of information in a waiver may seem like a small issue, the federal government takes it very seriously. Understanding federal background check laws could have saved Delta from a hefty fine.

How can you avoid this trap?

  • Research your area’s background check laws. Start with federal laws like the FCRA. Then look at regulations specific to your state and city.
  • Use a knowledgeable background check company. A reliable screening company can help you ensure your procedures are legal.

Breaking background check laws can land your business in an expensive legal mess. Knowing the laws will help you sidestep the first trap. Now, you need to dodge the next trap: inaccurate screening results.

Trap 2: Basing Hiring Decisions on Inaccurate Results

DoorDash, a food delivery service, was sued for negligent hiring when one of their delivery personnel stabbed a restaurant owner. How could DoorDash be held responsible for an employee’s violent crime? The company used inaccurate background check results when hiring. The results it used hadn’t included the applicant’s previous violent convictions.

Unfortunately, faulty results are on the rise. With many companies trying to speed up their background checks, mistakes slip in. The result? Screening reports can miss crimes that candidates have committed.

Along with reports that leave out crimes, flawed background checks may also assign crimes to innocent applicants. Either way, you could get stuck with a lawsuit for using incorrect results to make hires.

How can you escape the trap of using inaccurate results?

  • Use a background check company that ensures accuracy. Companies that claim instant results often lead to instant lawsuits. Choose a business that double checks its results.
  • Send a copy of the results to your applicant. Give candidates the opportunity to review and correct any mistakes before you make a decision.
  • Prepare an adverse action process. This process informs candidates that you may choose not to hire them based on background check results. It also allows time for candidates to dispute incorrect information.

Unreliable information makes sorting through applicants harder. You need correct information to hire a new employee — or an independent contractor? Which is it? Knowing the difference between the two will save you from the third trap.

Two business professionals discussing whether their new hire is an employee or an independent contractor

Trap 3: Misclassifying Employees as Independent Contractors

Depending on your state’s laws, you could easily misclassify employees as independent contractors. It can seem like an insignificant mistake. However, saying an employee is a contractor can land you in huge legal trouble.

Remember Delta’s run-in with the FCRA? The FCRA does not apply to running background checks on independent contractors. However, misclassifying a job as a contractor instead of an employee can lead to FCRA violations.

Even contract positions may turn into employment. California passed a law that restricts who can be considered independent contractors. Other states, like New York and Washington, are considering passing similar laws.

How do you ensure you’re classifying your jobs and applicants correctly?

  • Check the IRS definition. The IRS looks at three categories — behavioral control, financial control, and relationship — to determine whether someone counts as an employee.
  • Study state and local laws. Does your state or city have any restrictions on who are independent contractors? Investigate the laws that apply to where you do business.
  • Consult a lawyer. If you’re confused about how to define a job, ask an attorney for advice.

Correctly classifying employees and contractors prevents you from violating the FCRA and saves you from spendy lawsuits.

Background checks are crucial for making smart hires, but you can still fall into traps. Avoiding the traps protects your business from serious legal trouble.

Don’t Let Background Check Mistakes Trap You

Background check lawsuits can hit anyone, even the federal government. When the government missed dangerous convictions, it made a serious mistake. How can you avoid the mistakes that have trapped others?

Research federal, state, and city background check laws. Applying what you learn will stop you from violating regulations. Ensure results are accurate so you can make the right hiring decisions. Finally, classifying jobs correctly as employees or independent contractors will prevent hefty penalties.

The federal government fell into an obvious trap with their screening. Will your business avoid these traps?