Certn – How To Keep Background Screening Compliance Despite Regional Disparities With Katie Kulp

Announcer: 00:00 This is Recruiting Daily’s Recruiting Live podcast, where we look at the strategies behind the world’s best talent acquisition teams. We talk recruiting, sourcing, and talent acquisition. Each week, we take one overcomplicated topic and break it down so that your three year old can understand it. Make sense? Are you ready to take your game to the next level? You’re at the right spot. You’re now entering the mind of a hustler. Here’s your host William Tincup.

William Tincup: 00:35 Ladies and gentlemen, this is William Tincup, and you are listening to the Recruiting Daily podcast. Today, we have Katie on from Certain, and our topic today is how to keep background screening compliant despite regional disparities, and this is going to go in a lot of different directions. I can’t wait to talk to Katie about this. Katie, would you do us a favor and introduce both yourself and Certain?

Katie Kulp: 01:01 Sure. Thanks for having me, William. I’m really excited to talk about the topic we have today. I am based in Pennsylvania, outside of Philadelphia. I am the VP of US Operations and Compliance here at Certain. We are an international consumer reporting agency, but we have operations and an entity in the US. I’ve been an active member in the professional background screening association known as PBSA for almost 15 years, co-chaired the Government Relations Committee for a few years, and I’m currently serving my second multiyear term on the board of directors. I’ve done a few podcasts, written a few blogs, spoken at some conferences, and I thoroughly enjoy being a huge background screening nerd, and that’s my background.

William Tincup: 01:42 Well, let’s geek out. PBSA, y’all have a conference coming up, I believe. Right?

Katie Kulp: 01:48 We do, in Denver, in just about two weeks.

William Tincup: 01:51 Fantastic. So, let’s talk about regional disparities, because the last time I talked to folks about regional disparities, it was more around the legalization of marijuana and, “How do we deal with that?” But, since pay has come up and certain areas have different rules around pay, that’s actually been a little bit more topical of late. Take the audience into what you see in some of the… Let’s just kind of go and spider web the regional disparities that they might not know of.

Katie Kulp: 02:29 I’d wouldn’t say there’s as much of a pay impact that I’d be talking about today as much as I’d say the impact on the background screening process, generally, throughout the different regions. For businesses operating at the national or international level, crossing state lines and borders definitely has meant different laws and requirements depending on where a candidate lives or works, and many organizations now are experiencing challenges with that. There’s Ban the Box laws. There’re disclosure and authorization requirements, adverse action requirements, and all that good stuff. And although that’s always existed, it’s become a lot more difficult for employers to navigate that requirement, specifically because there’s a lot more remote work. People are working in different areas, and employers aren’t necessarily familiar with those areas and what those laws are.

03:24 They need to know which laws to apply. The Ban the Box and the Fair Chance trend, for those that are familiar with it, there’s an effort to try to get ex offenders back into the work industry, and in doing, so there are Ban the Box and Fair Chance requirements now that say, “You can or can’t do this during the background check process. We want to make sure everyone has a fair chance at a job,” rightfully so.

03:50 And 37 states and over 150 cities have now adopted some sort of policy, which impacts the background screening process. And so employers need to be familiar with what these areas are, so they can apply those required practices. And so, some of these laws we need to follow, they overlap and they often conflict and so instead of having one law to follow, there’re many different laws and also consideration of all these different geographies. Employers can no longer just work in that single geography vacuum that they’re used to.

William Tincup: 04:21 So, let’s start with the compliance, how do you know that you or are aren’t compliant, so the auditing process, et cetera, because you nailed something that’s really, really compelling to me around, “Now I can get a job for a company that’s in Paris,” or the reverse is also true. Companies in Paris can hire me, so the global… Now your talent acquisition team knows this. Your source of candidates can come from all over the world now, which is great. But, again, I don’t think, in the hiring process, I don’t even think they know what the hiring laws are in Kenya, or in a region of Kenya that might be different than they are in Detroit. So, what’s advice that you would give to people in terms of, “Let’s just start with the basics. Let’s go back to, how do you get… If you’re not in compliance, that’s fine. How do you get compliant?”

Katie Kulp: 05:32 For sure, and that’s a great question, because I couldn’t tell you what the laws in Kenya are off the top of my head.

William Tincup: 05:37 Nor could I.

Katie Kulp: 05:39 So, number one is making sure that you have access to legal council, always, especially if you’re a larger organization working internationally, but even nationally, it can be challenging. Just make sure that you bring in legal early and often with candidates that are coming in from an area where you’re not familiar with those laws, for one. The other thing is making sure that the organization in general is applying state and local regulations, and you’re not going to know what those are. So, again, legal is going to tell you what those are. They’re going to make you familiar with that, and with what those are. The other thing is it’s important to join associations. Just in general, there’s SHRM, I’m sure most people have heard of, in the US for human resources. And making sure that you’re involved in different associations, signing up for education in different places, that’s how you’re going to become in the know. And likely, your screening agency is really going to be who helped you and guides you in the right direction. Talk to them.

06:42 I always say to employers, “Reach out to your screening agency.” They’re not necessarily going to give you any legal advice, but they will definitely point you in the right direction if they’re a good screening company, and they’ll get you to a place where you know where to start.

William Tincup: 06:57 So, first of all, great advice, and state, local, federal, international, just the way that we would peel the onion, and for the audience edification, we’re talking about employment lawyers specifically.

Katie Kulp: 07:11 That’s right.

William Tincup: 07:13 What do you see, in terms of background, what used to be background checks on the front end of recruiting versus kind of a continuous kind of screening and monitoring. Do you see, again, the regional disparities? Do you see anything going on there kind of when you look at the market?

Katie Kulp: 07:37 The only real regional disparities that are coming really to the top of my head relate to certain states that don’t allow continuous monitoring without fresh consent. So, that’s always something that if companies-

William Tincup: 07:50 Interesting

Katie Kulp: 07:51 … Are now doing continuous monitoring, and a lot of companies have implemented that on some level, and you have candidates that are living in different states, or different countries even, there are specific geographies that say, “You cannot continue to monitor and run a new background check automatically unless you have brand new consent,” which means that Evergreen clause that typically is found in every disclosure and authorization that we used to give… We used to say, “Here’s your authorization, and sign it, and by the way we can run a new background check for so long as you are an employee of our organization.” Those regional disparities do exist, where depending on where the candidate lives or works, that may not be allowed. And so, again, legal and your screening company can get you in the know on where those areas might be.

William Tincup: 08:39 I love that. So, two sides of the same coin. And again, without brands or names or any of that type stuff, but basically the question is people that have just done this really well, stories that you’ve heard, or stories that you’ve witnessed, or anecdotes, et cetera, and in the flip side, horror stories of where this has just gone off the rails. And again, no brand names, nothing, we don’t need that. It’s just the stories that are really compelling for folks.

Katie Kulp: 09:12 I don’t know if I have any really good or bad stories specifically, but I will say, if you go into it blindly, employers that kind of just assume they’ll just dodge a bullet, they don’t Dodge the bullets. Candidates are actually way more in the know than companies realize on what their rights are and what employers are required to do. And so I’ll tell you, generally, horror stories that happen now that never happened before is that when an employer doesn’t necessarily do what they’re supposed to do… It used to just be, “Well, no one will really find out,” but now consumers and plaintiff’s attorneys are seeking out companies and employers who aren’t following the laws. And what they’ll do is they’ll go apply for a job on the background screening website for the employer, and they’ll go through the process looking for holes and then the candidate gives that information to the plaintiff’s attorney, and that attorney then goes and sues the organization for that, and it becomes a Class Action.

10:21 And so that is crazy, because 10 years ago, that really wasn’t happening, but now, because everyone realizes how difficult it is to navigate all of these laws correctly… And it is a challenge… Companies are being [inaudible 00:10:36] out. So, even if you’re kind of flying under the radar, or you’re a smaller organization, you’re still kind of a target if you’re not doing what you need to do. So, it’s really important to kind of follow that advice. Make sure that you keep access to that education and have legal close to you.

William Tincup: 10:52 I love that. So, what part have you seen social media? Because first of all, I absolutely agree… And I could see on the, as you mentioned, consumers, employees, candidates, et cetera… Something is wrong. I hit Twitter, and put that person or that company or whatever on blast, and now it’s out in the open. Whereas, before, as you said, it was just something that just suffered in silence, if you will. So, what have you seen, in terms of social media?

Katie Kulp: 11:23 That happens, and I have seen it happen, and I’ve seen it on multiple social media platforms, and I mean, at the end of the day, there’s two sides to that coin, because sometimes things are put out there that are true and things that are put out there that are not true. And ultimately, the employers and organizations, including screening companies, even if they are doing the right thing, it’s costly to prove that they’re doing the right thing. And so really trying to have those ducks in a row up front, and trying to avoid any issues for candidates specifically, really helps eliminate those types of opportunities for consumers to have something negative to say, but that does absolutely happen, and there’s only so much you can really do about it.

William Tincup: 12:16 Well, if you’re doing the right thing on the front end, then you have nothing to worry about. If-

Katie Kulp: 12:23 Yeah, but people can still say that you didn’t [inaudible 00:12:25]-

William Tincup: 12:24 100%.

Katie Kulp: 12:26 … Do actually do the right thing, there’s less of a chance that someone is going to go through that [inaudible 00:12:31].

William Tincup: 12:31 100%. So, I should have started with this at the beginning, but for folks that are listening, what do you see in background screening today that’s new and improved, if you will, but the wonderful world of background screening? If people haven’t paid attention, as you have, what do you see in background screening today?

Katie Kulp: 12:57 You mean on the positive side?

William Tincup: 13:00 Yeah, absolutely.

Katie Kulp: 13:01 [inaudible 00:13:01]. We’d love to talk about the positive. So, I mean, the background screening industry has changed so much over the last 10 to 15 years. There’s lots of automation available now that wasn’t available before. And when I say “automation,” I’m referring to criminal searches that are used to taking weeks and weeks. That does happen from time to time in certain areas, but generally speaking, there’s a lot of electronic access to records now that didn’t exist before. So, background checks come back a lot quicker in most cases. The other thing that we see is the method of getting background checks into a system is a lot easier. The candidate experience is so much better than it was a decade ago. Candidates are typically able to do everything from their mobile phone, enter in all of their information, and sign everything. There’s hardly ever any paper anymore. Unless, of course, you’re an employer where you’re working with people that just generally aren’t good at electronics, there’re usually always those options available. But, in the way of technology, we’ve just come such a long way.

14:07 And generally speaking, I will say the biggest impact to the background check process is, is it a lot more consumer friendly now than it ever was. Fairness to consumers is key, and usually, that’s priority for background screening companies and for employers at this point in the game to make sure that an accurate assessment can be made about a candidate and you’re looking at the full picture and not just whatever is on the background check report.

William Tincup: 14:37 Dumb question alert, do you see a world where it’s, as you said, consumer driven, but it’s both sides? So, “We’re going to do a background screen, but you get the results as well.”

Katie Kulp: 14:50 Me, being the employer?

William Tincup: 14:51 As the candidate, no. The candidate.

Katie Kulp: 14:54 Yeah. So, that actually happens now.

William Tincup: 14:56 Good.

Katie Kulp: 14:56 Candidates have an option [inaudible 00:14:58]-

William Tincup: 14:58 Take us into that.

Katie Kulp: 15:00 Where they get a copy of their own report?

William Tincup: 15:03 Yeah.

Katie Kulp: 15:03 So, typically, in the background check process, the candidate… I would say nine times out of 10, unless their working with some sort of ATS integration through an HR system, candidates are entering their own information, and when they’re signing all of their consent documents saying, “Yes, you can do a background check on me,” there’s usually an option to receive a copy of their report, and they can check that box. Now, that’s only a requirement in about three states, but generally, background screening companies are very consumer friendly, and they offer that option to everybody.

15:35 And if you check the box, you get a copy, and that can be a double edged sword, because just being candid, candidates get a copy of their report, and hopefully, they look at it and they’re like, “This is great, and everything is correct,” but if they’re getting copies of their reports, there’s a possibility that they’re not liking what they see. Hopefully, it’s not because it’s inaccurate but because it upsets them to see what’s on there in certain cases. But, ultimately, it makes the process better. Transparency with the candidate is a much better experience, and if something is incorrect in the report, they really should be getting it updated with the agency.

William Tincup: 16:14 It’s fascinating, because it’s like your credit report, to know and understand [inaudible 00:16:21] Credit Karma or whatever, to understand going on there. You’re-

Katie Kulp: 16:24 Absolutely.

William Tincup: 16:26 … You’re not blind. And then if there’s something wrong, fix it, or at least talk about it, and explain it, et cetera.

Katie Kulp: 16:34 And in the spirit of this topic that we’re talking about, credit reports, bringing those up, there are regional disparities with credit reports. So, if you’re an employer and you want to run a credit report on everybody because you just think you want to know about their credit and you think anyone who has bad credit can’t hold a job, for example, you can’t do that anymore. You shouldn’t be doing it anyway as an employer, but there are laws that say that you cannot do it. And in many states, the job has to be very related to someone’s credit in order to run a credit report at all. In many states, you need very specific consent. It kind of just all ties back to understanding what the laws are in different geographies and ensuring that you know what’s out there and what exists so that you can do the right thing.

William Tincup: 17:19 I think I.

Katie Kulp: 17:20 It isn’t easy. It’s challenging, for sure.

William Tincup: 17:22 Well, it leads to hiring bias, ultimately.

Katie Kulp: 17:28 For sure.

William Tincup: 17:28 So, as much as we can, as you said, let’s put in more transparency. Let’s take out less bias. I wanted to ask you about, because you mentioned tech, how much do you see fixing regional disparities, or making sure… Maybe not “fixing…” Making sure that you’re compliant with the disparities. How much do you see this as tech, process, or training, or a combination of all those things, or what advice would you have for peers of yours?

Katie Kulp: 18:01 I would say that, I mean, [inaudible 00:18:04] somewhere electronically, generally, in tech is helpful, but in terms of how it plays into the process, typically, you can talk to your background screening company, and they have options where, if you’re going to make any decisions, you can write from their portal, be able to know what laws might apply, how to follow the adverse action process, for example, how to adjudicate. They shouldn’t be making any of those decisions for you in most cases, but you can usually work with them to implement more automated processes, to make all of these things easier in some way.

William Tincup: 18:40 So, I wanted to ask you… Thank you, by the way… But I wanted to ask you also about standards, because as we’ve nibbled around the edges of this, but it’s when we talk about compliance, auditing, bringing in obviously employment attorneys, et cetera. What’s the best suggestion? We’ve seen this happen, especially over the last couple of years, in terms of standardizing the interview process, which is great. So, how do we create our own standards so that, A, we guide ourselves closer to being compliant all the time as it relates to regional disparities?

Katie Kulp: 19:20 Of course, that’s a good question. So, the first thing I would say, off the top of my head, is it’s always a good practice to apply the most conservative law. So, for example, if somebody lives in one place and they’re going to work in a different place, there could be two overlapping or conflicting laws telling you what you can do during that interview process. It’s always best to follow the most conservative law. I’m not giving any legal advice here, but [inaudible 00:19:49]-

William Tincup: 19:48 Absolutely not.

Katie Kulp: 19:49 … Generally, it’s a good rule of thumb, because the interview process, and laws that exist around the interview process, are typically to help candidates get jobs. So, major standards that someone can implement in their processes, number one, there’s a question on an application that used to be really prevalent on all applications, and it was the question with the box that says, “Have you ever been convicted of a crime?”

20:15 My suggestion is that should come off of every application. When I talk about Ban the Box laws and Fair Chance requirements, that’s what that is pertaining to, that box on the application that can stop people from getting jobs before you even have a chance to talk to them. So, to eliminate that bias, that box should be removed, and the reason why that can be standardized is because that requirement already exists in so many states and areas that if you just took it off completely, it’s mindless. You don’t have to think about whether or not you can have it on there each time you interview someone. The other thing is just not asking about criminal history upfront. It’s a great standard practice. That way, you don’t have to think about what areas say you can and what areas say you can’t. Wait until after a conditional offer. Those are probably the top two that come to mind, in terms of things that you can do right up front that will ensure you’re in compliance in different ways during the interview.

William Tincup: 21:10 I love that. So, one of the things that I definitely wanted to ask you, in terms of, because you’ve said, “Listen, you’ve got a screening partner, a tech partner, probably, most likely. You’ve got employment lawyers. You’ve got associations like PBSA. Lean on knows heavily…” Excuse me… But it begged the question for me. At the end of the day, who owns compliance as it relates to these regional disparities. Is it leaning more towards talent acquisition, or HR, or a combination of legal? Who owns this?

Katie Kulp: 21:51 That’s great. So, I would say there are some requirements in the background check process that fall on the employer in general, some that fall on the background screening company. And then within your actual agency that you work with, you can call that whatever we want. We call it People in Culture here at Certain. Some people call it Talent acquisition. Some people call it HR, but typically, it’s that HR Department.

22:16 Wherever the employer is, that is usually the department that’s owning the entire background screening process, start to finish. They’re usually very much involved in SHRM, for example, or different HR organizations that are keeping them in the loop on hiring processes, and they’re also the people talking to the background screening company on a daily basis, generally. Those are who we talk to, and they are posing the questions to us about, “What should we do here? What should we do there? What should our next steps be?” So, there’re very few things that actually fall on the background screening agency, in terms of true compliance. We do help administer a lot of those things, and we educate, and we do what we can, but ultimately, that compliance is on the employer, and generally falls on the HR side, partnering with their legal counsel, hopefully.

William Tincup: 23:05 Two questions, one is, “Do you see a world in which there’s a specialization?” Because, over the years, I’ve seen HR operations, employer branding, recruitment marketing, recruiting operations, do you foresee a world where this is so complex that they need a person that works with all the parties to make sure? That’s their job. That’s [inaudible 00:23:33].

Katie Kulp: 23:32 [inaudible 00:23:33] that definitely exists now. We have a lot of larger organizations who have HR people, for lack of better words, that are specifically designated to the background check process, and sometimes-

William Tincup: 23:45 What’s their title?

Katie Kulp: 23:46 … Your title is… What’s that?

William Tincup: 23:49 You are about to answer it. It was, “What’s their title?” I’m curious.

Katie Kulp: 23:51 Employment Screening Coordinator, Background Check Manager, I mean, all over the place. It depends on the company, but absolutely, it definitely requires a person who is very familiar with the process. They’re not throwing just anybody on [inaudible 00:24:08].

William Tincup: 24:10 Again, you’ve got these partners. So, with your vendor partners, your attorneys, and associations, et cetera, but it seems like this is going to… It looks like, because of the complexity, this isn’t just someone you can hire and throw them in there and say, “Go.” There’s-

Katie Kulp: 24:29 Exactly. And smaller organizations… Don’t get me wrong… They don’t have the resources to have their own background screening [inaudible 00:24:37]. And so, unfortunately, they have lower resources, and they do depend on us to point them in more directions, and maybe we partner them with some outside council they can use that we can recommend. And so that, for sure, happens. So, not every organization has all of that, but if you’re larger, you do. If you’re not, you kind of go in blindly and hope, as we do. We educate our customers, and they hear enough to know that they need to put a little bit more deeper eyes on a lot of these things.

William Tincup: 25:07 I love that. I could talk to you forever. This has been so fantastic. Thank you so much, Katie. I just thank you for your wisdom and your time.

Katie Kulp: 25:17 Thank you for having me. It’s great.

William Tincup: 25:18 Absolutely, and thanks for everyone listening to the Recruiting Daily podcast. Until next time…

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