Last week, we reported on why staffing agencies should not disclose background check report results with their clients. This week, we’ll discuss a few ways in which this benefits clients, as well.
While end clients sometimes believe it’s a good idea to review candidate background check reports in order to flag concerns, this could actually expose them to risk of discrimination claims. That’s because information contained in the report regarding a candidate’s inclusion in a protected class would defeat any potential defense that the end client didn’t know about said protected class when making a hiring decision. Moreover, the more control over employment decisions that an end client exercises, the more likely it is that they could be viewed as a joint employer, opening them up to added liability.
So what should clients do?
Of course you want a qualified workforce. In lieu of reviewing background check reports, you should ensure you have well-drafted services agreements with staffing agencies you enlist to find candidates for you. You may consider provisions requiring that the staffing agency comply with all applicable laws (including, but not limited to, equal opportunity employment, the FCRA, and individualized assessments) and confirm that background check reports meet the terms of your underlying agreement.