Localized Adverse Action Compliance Workflow in a Ban-the-Box World
No law says you have to hire people with criminal records.
But more and more laws require that you at least consider them – and document the fact that you did.
That’s why simply following the federal FCRA adverse action process is no longer enough. In recent years, state, county, and local laws – more than 180 of them across the U.S. – mandate a whole new set of rules.
Depending on where you hire and where the candidate will work, you may have to research and understand the requirements of two, three, four, or more sets of laws. And you should comply with EEOC guidelines on the use of criminal records in hiring on top of everything else.
That’s hard work. But don’t worry, we’ve done it for you.
New Built-In, Localized Adverse Action Workflows
Starting today, anytime you reconsider hiring a candidate based on the results of a background check, GoodHire can take the stress and worry out of the process.
A new customized workflow guides you through all steps required by the federal, state, and local laws that apply based on your location and your candidate’s location.
It even shows you what’s recommended to reduce lawsuit risk, even when not specifically required by law.
And, if the information you gather along the way makes you change your mind and decide to hire, you can cancel out of the workflow with a single click.
How Localized Adverse Action Works
You’ll kick off the process by clicking the "Considering Adverse Action?" button on the candidate’s results page.
Following Federal Law
At the federal level, adverse action is a three-step process, required by the FCRA, that involves:
- Pre-adverse action, which notifies the candidate that something in the background check could affect your employment decision
- A waiting period, typically five business days, which gives the candidate time to let you know of errors or provide more information
- Final adverse action, which notifies the candidate of the final decision.
If you've seen the results of a background check and you think you might not hire, you must follow the FCRA adverse action process. There are no exceptions.
Even if no other laws apply to you and your candidates, the FCRA applies. So the adverse action workflow will always include the necessary FCRA steps.
All required notice and forms are built right in. We even send you a reminder when the required waiting period is over.
You can review this list of what’s required for federal adverse action to see all the steps we simplify for you.
But FCRA compliance is just the beginning. An adverse action process that doesn’t include EEOC and state and local requirements leaves you exposed.
Applying State And Local Laws
More than 29 states, the District of Columbia, and 150 other municipalities have passed ban-the-box laws that govern when and how employers can ask about criminal records.
GoodHire’s localized adverse action workflow handles the specific requirements of all the adverse-action rules that apply based on your location and your candidate’s location, including:
- Specific required language and forms for pre-adverse action
- Waiting periods that differ from federal requirements (and reminders to you when the waiting periods end)
- Documenting targeted screens and individualized assessments
- Required language, notices, and documentation for final adverse action
The EEOC isn’t shy about pursuing court action against employers that avoid hiring people with criminal records. So we’ve included targeted screens and individualized assessment as recommendations even when they’re not required.
Targeted screens and individualized assessments are based on guidance established by the Equal Employment Opportunity Commission on how employers should handle criminal records in employment decisions.
The goal is to avoid inadvertent discrimination against protected classes, including race and national origin.
A targeted screen involves considering the “Green factors” (named for the legal case that established them):
- The nature of the offense
- How much time has passed since
- The nature of the position sought
An individualized assessment involves asking candidates for more context, such as:
- Specific circumstances of the offense
- The candidate’s age when it occurred
- New offenses committed since
- Evidence of rehabilitation
Sound familiar? If you’re a GoodHire customer, it should. We empower candidates to add this context right into their results.
Putting It All Together
To understand how it works, let’s say you run a GoodHire employment background check on a candidate that returns an alert. The alert is recent and serious enough that you want to reconsider hiring the candidate.
You click the new Considering Adverse Action button on the candidate’s results page to get started.
If you ran the background check before today, you’ll follow some prompts to let us know:
- Whether your organization is in the public or private sector
- Where you’re located
- Where your candidate would work if hired
Starting today, we’ll gather most of this information when you order the background check.
Once you’ve kicked off localized adverse action, the workflow guides you through the exact steps required in those locations, including:
- Exactly what you must include in pre-adverse action notices
- How to find out whether you're required to conduct targeted screens and individualized assessments (and when they’re recommended)
- What to consider, ask for, and document as part of a targeted screen and individualized assessment
- How long to wait before sending the final adverse action notice if you decide not to hire
- How to find out what you must include in the final adverse action notice
- When you can send the final adverse action notice (including an email reminder)
We’ve included advice, templates, and required forms and notices right in the workflow, along with a handy guide to state and local laws that govern adverse action.
You won’t need to search for the right form, try to decipher complicated legalese, or worry whether you’ve gotten everything right.
We’ve done all that for you.
What It Costs
Our team of legal experts, data scientists, engineers, designers, and product managers spent months figuring out all these laws so you won’t have to.
That’s why we’ve decided to charge … wait for it …
You’ve paid for the background check. All this guidance is simply built in.
It’s all part of our commitment to trust, safety, and fairness in hiring.
Adverse Action Help At Your Fingertips
Making decisions about candidates with criminal records may not be something you do every day.
Now you know what you can do and what you’re required to do. Take a deep breath, take a close look at the record, and really consider the whole candidate.
You might decide to hire.
In the GoodHire workflow, you can cancel adverse action at any step of the way.
But if you decide not to hire, you’ll know that you did everything the law requires – including giving every candidate a fair chance.