Background screening is not the most exciting part of the hiring process for either the candidate or the hiring entity. However, it often is the most important and, not to mention, the most complicated — especially with all parties concerned operating remotely during the pandemic.

In a continuation of my last article, this piece looks at a couple of important components of background check procedures.

Adjudication Responsibilities

Who decides whether a contingent candidate passed their background check and will be allowed to work at your organization? Is the decision made in-house, or is approval left up to your supplier?

For most contingent workforce programs, the supplier decides whether a candidate passes the background-check muster. Therefore, it is important that best practices and supplier guidelines are addressed in your contracts and that reviews are periodically conducted to make sure these guidelines are being met.

The guidelines in the contract should be clearly spelled out, with no room for misinterpretation. This provides consistency and helps streamline the process. In addition, have an adjudication protocol in place should the supplier encounter an unusual situation that requires a judgment call; this may be where the CW manager steps in and makes the decision after consulting with the supplier and carefully reviewing the screen.

Work with your vendors to set expectations. If the staffing provider is conducting the background check, the staffing firm should — in theory — be adjudicating them as well, says Chris Paden, director of contingent workforce strategies and research for SIA. But it gets interesting when the buyer organization becomes either very prescriptive or very vague in how they write their adjudication requirements.

If you are overly prescriptive in your guidelines, you may take on more time-consuming responsibility for the adjudication decisions but also gain more confidence that the decision complies with your guidelines each and every time. On the other hand, if you set general guardrails and put more responsibility on your suppliers, there is a bit of risk that they might not decide the same way you would in every situation.

“Those are the two scenarios that a lot of organizations are exploring: at what level do they get involved in defining those adjudication guidelines, and then helping to support the adjudication process in general?” Paden says.

He is a proponent of defining these expectations in a “rules of engagement” or a “standard operating procedure” document with suppliers.

This tends to provide a bit more flexibility than having adjudication guidelines as a contract term and allows the buyer to provide more detail and context around the process and expectations. It can result in a slightly “more fluid” document as well because it is not a contract that requires increased legal scrutiny and is easier to edit.

“A rules-of-engagement or standard operating procedure document gives you a little bit more control at the program level,” Paden says. “It allows you to write it in more of a narrative form, which is important.”

The SOP. Start with defining what type of background check is appropriate to provide consistency around how resources are screened, and then add other ancillary information regarding appropriate timeframes, expirations, renewals, audit processes, etc., he advises. This helps ensure your suppliers are completing checks to adhere to audit requirements, not just to have something on file saying a check was completed.

Arrest and Conviction Records: Tread very carefully

Background checks are a big source of liability because they are sometimes done incorrectly and in a way that creates liability, Eric Rumbaugh, a partner with law firm Michael Best & Friedrich LLP, told SIA.

Follow US Equal Employment Opportunity Commission guidelines regarding the relationship between the job and the criminal record when evaluating background checks, he advises. “Otherwise, if you have a statistical disparate impact against a group, especially racial minorities, you are going to lose a class-action.”

State and federal rules can vary regarding what can be included in a background check. For instance, some states have rules that make discrimination based on arrest or conviction records illegal, much like gender and race discrimination. But those rules are not consistent nationwide.

“Federal law comes at it from a different angle,” Rumbaugh says. It found conviction records in background checks have a statistically disparate impact on men — and to a greater extent, on racial minorities, especially Black people — and the US Equal Employment Opportunity Commission has issued guidance to minimize this impact.

Neither state nor the federal governments want you to have blanket rules. Except for industries that may have particular regulations, such as finance and caregiving, avoid providing a “red light, green light” list of convictions that will automatically exclude a candidate, Rumbaugh advises. While it may save a lot of time, it is illegal.

Consider the age of the crime, the actual crime, and the job the person is applying for.

“They want a really tight relationship between job and crime,” Rumbaugh says. “You have to consider each job and each crime on a case-by-case basis.”