CODESP - Cooperative Organization for the Development of Employee Selection Procedures Background and Reference Investigations Questions and Answers — Questions and Answers
Question 1: A public agency uses a third-party vendor to conduct criminal background checks on finalists. Before deciding not to hire a candidate based on information in the vendor's report, what is the agency required to do under the Fair Credit Reporting Act (FCRA)?
- Inform the candidate that a background check will be conducted and obtain their written consent.
- Provide the candidate with a copy of the report and a summary of their rights, allowing them a reasonable time to respond. (Correct answer)
- Immediately notify the candidate of the final decision and provide the name of the vendor used.
- Contact the third-party vendor to independently verify the accuracy of all negative findings.
Correct answer: Provide the candidate with a copy of the report and a summary of their rights, allowing them a reasonable time to respond.
The FCRA requires employers to follow a specific two-step process when taking adverse action based on a consumer report. The first step is the 'pre-adverse action notice,' which includes giving the candidate a copy of the report and the 'A Summary of Your Rights Under the Fair Credit Reporting Act' document, and allowing them a reasonable period (typically five business days) to dispute the information before the employer makes a final decision.
Question 2: Which of the following best defines the legal tort of 'negligent hiring'?
- An employer's failure to exercise reasonable care in selecting an employee, which results in a foreseeable injury to a third party caused by that employee. (Correct answer)
- An employer's failure to obtain a candidate's written consent before conducting a background check.
- An employer's decision to hire a candidate who is less qualified than other applicants from a protected class.
- An employer's failure to provide a reasonable accommodation for a qualified applicant with a criminal record.
Correct answer: An employer's failure to exercise reasonable care in selecting an employee, which results in a foreseeable injury to a third party caused by that employee.
Negligent hiring is a claim made by an injured third party against an employer. The claim alleges that the employer knew or should have known about an employee's background or dangerous propensities (which a reasonable background check might have revealed) and failed in its duty to protect others, such as customers or co-workers, from that employee's actions.
Question 3: The primary legislative goal of 'Ban the Box' or 'Fair Chance' laws is to:
- require employers to hire a specific quota of individuals with criminal records.
- forbid employers from ever asking about or considering an applicant's criminal history.
- eliminate the need for employers to conduct background checks for non-sensitive positions.
- delay inquiries into a candidate's conviction history until later in the selection process, allowing them to be first judged on their qualifications. (Correct answer)
Correct answer: delay inquiries into a candidate's conviction history until later in the selection process, allowing them to be first judged on their qualifications.
The core purpose of 'Ban the Box' legislation is to remove the question about conviction history from the initial job application. This prevents applicants from being automatically screened out. The inquiry is typically postponed until after an initial interview or a conditional offer of employment, ensuring that candidates are first evaluated on their skills and qualifications for the job.
Question 4: During a reference check for an accounting position, a candidate's former supervisor states that the candidate is 'not eligible for rehire.' When asked for more details, the supervisor declines to comment further. What is the most prudent next step for the hiring agency?
- Disregard the comment as it is unsubstantiated and could be based on personal bias.
- Immediately disqualify the candidate from further consideration.
- Document the 'not eligible for rehire' statement and proceed with an individualized assessment, potentially discussing the matter with the candidate. (Correct answer)
- Assume the candidate was a poor performer and select another finalist.
Correct answer: Document the 'not eligible for rehire' statement and proceed with an individualized assessment, potentially discussing the matter with the candidate.
While a 'not eligible for rehire' statement is a significant red flag, making a hiring decision solely on that comment without context is risky. The best practice is to document the information obtained, consider it in the context of all other information gathered (the 'whole person' or 'individualized assessment' concept), and, where appropriate, give the candidate a chance to address the information before making a final decision.
Question 5: A former employer who provides a truthful, job-related, and non-malicious reference about a past employee to a prospective employer is generally protected from a defamation lawsuit under what legal principle?
- At-will employment
- The Fair Credit Reporting Act (FCRA)
- Qualified privilege (Correct answer)
- The Uniform Guidelines on Employee Selection Procedures (UGESP)
Correct answer: Qualified privilege
Qualified privilege protects a person from liability for defamation when they make a statement to someone with a legitimate, shared interest in the information. In the context of reference checks, a former employer has a qualified privilege to discuss a past employee's performance with a prospective employer, as long as the statements are made in good faith, without malice, and are based on facts.
Question 6: When conducting a reference check with a candidate's former supervisor, which of the following questions is MOST appropriate and legally defensible?
- Did the candidate ever file a workers' compensation claim?
- Could you describe the candidate's job duties and their performance in carrying them out? (Correct answer)
- What was the candidate's exact starting and ending salary?
- Is the candidate married or does she have plans to start a family?
Correct answer: Could you describe the candidate's job duties and their performance in carrying them out?
The most appropriate and useful information from a reference check is job-related and verifiable. Asking about job duties and performance is directly relevant to predicting success in a new role. Asking about workers' compensation is illegal under the ADA. Asking about family status is discriminatory. While asking about salary is not always illegal, many states and localities have passed salary history bans, making it a legally risky area.
CODESP - Cooperative Organization for the Development of Employee Selection Procedures Background and Reference Investigations Questions and Answers
A public agency uses a third-party vendor to conduct criminal background checks on finalists.
Before deciding not to hire a candidate based on information in the vendor's report, what is the agency required to do under the Fair Credit Reporting Act (FCRA)?