The challenges of background screening on your own

Do a quick Google search for “DIY background checks” and you will find countless websites and articles offering “free” background screening services and how-tos for running background checks on your own.  

For growing businesses looking to stretch their hiring investment, it’s an enticing proposition. “Instant,” “free” online searches give the perception that performing background checks in- house with existing resources will give you more control over the process and help you save money to boot.  

Or you may be considering in-house screening to avoid federal Fair Credit Reporting Act (FCRA) requirements, which are mandatory when using a third-party background screening provider to support your background checks. However, requirements can vary based on factors such as location, industry, position, and employer type. 

But the ability to do something in-house doesn’t mean you should. 

Because background screening is a complex, highly regulated process that requires expertise, cross-jurisdictional knowledge and a working understanding of applicable legal and regulatory requirements that many organizations do not have in-house. Mistakes can lead to less informed hiring decisions, costly violations, reputational damage and even financial penalties. In this post, we’ll discuss the potential pitfalls of running background checks in-house and the benefits of working with an accredited partner for background screening.

In-house screening can exempt employers from FCRA and provide perceived cost savings.  

However, even then, employers that conduct background checks internally may be responsible for navigating a variety of federal, state, and local requirements that can affect the screening process, such as federal Title VII and related EEOC guidance, and applicable state Ban-the-Box laws and privacy regulations. 

These regulations can impact the entire background screening process – from your job application, to your disclosure and authorization forms, to your hiring criteria and the adjudication and hiring decision process. Depending on your location, industry, and hiring practices, these requirements may influence when screening occurs, what information can be considered, and how hiring decisions are documented and communicated. 

Staying educated on these regulations is one of the biggest challenges employers face. Because requirements vary by jurisdiction, employers should evaluate applicable laws, regulations, and guidance when developing their screening programs. To follow are just a few examples of regulations that generally impact the criminal history portion of the background screening process. 

Employers should evaluate applicable guidance and legal requirements when considering criminal history information during the hiring process. Depending on applicable requirements, employers  should conduct an individualized assessment to consider factors such as the nature of the role, the nature of the criminal history information, and whether additional assessment may be appropriate before making an employment decision 

Many jurisdictions have enacted laws or regulations that affect when and how employers may obtain, review, or consider criminal history information during the hiring process. Common examples are “Ban-the-Box” or Fair Chance laws.  

If the employer (or candidate) lives in one of the many states, counties and cities that have passed this type of legislation, they should also follow specific procedures when requesting and considering criminal history during the recruitment and hiring process, and notifying individuals if criminal history is used in part, or in whole, when making an employment decision. 

(Note: Sometimes, these laws can apply in both the employer’s location and the candidate’s’ location. In other words, employers may need to keep track of requirements in their location, as well as anywhere else they hire.)  

These requirements, which cover everything from job postings to adverse action requirements, documentation and notifications, tend to be highly specific and vary by state. 

 While requirements vary significantly by jurisdiction, employers may encounter obligations such as:  

(Note: This  overview is not an exhaustive list of Ban-the-Box and Fair Chance law requirements and is meant to provide employers with common compliance requirements employers should consider.) 

In addition, many state and local jurisdictions have established anti-discrimination, human rights, and privacy laws and regulations which may apply to the background screening process.  

Ultimately, requirements vary by jurisdiction and employers should evaluate applicable laws and regulations based on their specific circumstances. 

Employers handling background checks in-house may struggle to keep track of this patchwork of requirements, or understand which regulations apply under which circumstances. Designing and implementing a background check process that complies with each of these requirements can be even harder, especially for smaller organizations.  

Third-party background screening providers can provide the technology and the support necessary to stay educated on these requirements.  

For instance, Accurate helps employers support Ban-the-Box and Fair Chance compliance by offering workflows and notices designed to align with varying jurisdictional requirements. This can help employers manage complex compliance considerations more effectively.  

Third-party providers can also provide education on new and changing laws that may impact your background check program, providing helpful information to evaluate existing processes and procedures, and prepare for critical changes.  

Many employers who conduct their own background checks research a candidates’ background by going directly to the courts or using third-party databases, like the FBI crime database or public background check sites.  

But the United States does not have a single, centralized database that automatically captures every record from every jurisdiction. With no single source of truth, employers will need to check multiple sources to fully evaluate a candidate’s’ criminal history.  

So if employers rely solely on publicly accessible databases to screen their candidates, they will generally risk missing important and/or accurate records and potentially disqualifying information about candidates.  

Complicating matters further, the availability, reliability and completeness of the information in public databases can be questionable, which increases the risk of making an important hiring decision based on inaccurate or incomplete information.  

Below are other common problems with sources commonly used by employers performing background checks on their own. 

Court records: Employers researching court records directly should understand that not all criminal history information may be reportable, reviewable, or appropriate  to consider in every hiring situation. Applicable requirements can vary based on factors such as location, industry, position, and employer type. 

Public databases: Information in “people search” tools may contain incomplete, outdated, or inaccurate information. It can also be difficult to match a record to an individual, especially for common names. Employers relying solely on these sources may face challenges verifying the accuracy and completeness of information used during hiring decisions. 

As one example, in September 2023, the Federal Trade Commission announced that it would require two public background-check websites, TruthFinder and Instant Checkmate, to pay $5.8 million in fines to settle charges of, among other things, “failing to ensure the maximum possible accuracy” of their reports.  

As with other public databases, relying solely on these sources to make hiring decisions could mean missing potentially disqualifying information, mistakenly attributing a criminal record to the wrong person, or  making a decision based on inaccurate, incomplete or outdated information.   

Background screening providers often use a combination of technology, research processes, and data sources to help employers obtain information that may not be readily available through a single public source.

For example, background screening providers like Accurate can run social security and address traces locator searches to help identify a candidate’s additional aliases and addresses that may warrant additional searches.  

Or they can contact licensing boards directly to confirm a candidates’ licensure status. This gives the employer information that they may not have had access to otherwise.  

Running your own background checks is possible. It may even save you upfront costs. But as we’ve seen, properly conducting background checks in-house can often be much more time-consuming, complex, and location-sensitive than employers expect.  

Managing screening processes often requires experience, specialized knowledge, familiarity with applicable requirements, dedicated resources, and technologies that many growing companies do not possess on their own.  

This means significantly increasing the risk of making less informed hiring decisions, missing potentially disqualifying information or potentially committing compliance or legal violations.   

If you conduct background screenings in-house, you’ve taken the first step towards making more informed hiring decisions and protecting your organization from potential liabilities.  

But for many companies, partnering with a third-party provider can help them screen more quickly, make more informed hiring decisions, and stay educated on compliance regulations and help mitigate risk more effectively.  

Contact us today to see why 16,000+ of the world’s largest organizations trust Accurate with their background screening needs. 

Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.