Illegal Background Checks – Guidelines for Employers

When an employer makes any sort of personnel decision, they are legally entitled to find out more about a person by performing a background check. A background check can show a person’s education, work history, financial history, and criminal record. The goal of a background check is to confirm that there will not be any legal problems upon hiring a candidate, such as negligent hiring or negligent supervision.

Negligent hiring refers to hiring a dangerous person. The individual answerable for hiring them knew or should have known such information. Running a legal background check is one way employers avoid this.

Background checks may be a requirement for being employed in some industries. Employers may typically ask job applicants for consent to run a background check in writing. This would contain any information relevant to the position.

Some specific instances of what information a background check could provide include:

• Whether the job candidate has a criminal record;
• If the individual does have a criminal record, when the charges occurred and the nature of the crime committed;
• If the person is allowed to work within the United States;
• Credit history and other financial information;
• Information concerning prior military history; and
• Other details such as immigration status.

Suppose the job applicant does not agree to the background check. In that case, the employer is allowed to refuse to consider the applicant for the position. However, background checks do not give the employer the freedom to investigate every part of an employee or candidate’s life.

Background check investigations should only concern appropriate information for the position. Although typically legal, background checks can become unlawful when they break employment laws and fail to follow specific guidelines.

What Are Guidelines for Avoiding Illegal Background Checks?

Employers must follow numerous approaches to evade performing an illegal background check.

Some of those guidelines include:

• Obtain Written Consent: For an employee background check to be legal, the employer must get the employee or job candidate’s permission before conducting the check. Written consent is also needed to inspect a person’s educational information, such as school transcripts. Employers cannot compel an applicant to furnish consent, although they can refuse to hire a person who declines to agree to a background check;
• Ensure that the Background Check is Job-Related: Background checks can be essential for jobs that concern managing personal or financial information. Some inquiries about a job applicant’s information may be requested outright. In contrast, other information ought to be acquired through a background check. Any information that an employer is trying to obtain must be related to the job.
  • An example of this would be checking a person’s criminal history if they are being assessed for a security guard position and would be carrying a gun or other weapon. Nonetheless, running a criminal history check for a medical receptionist job would probably be excessive, given the nature of the position;
• Do Not Ask About Medical or Genetic Information: Employers are not allowed to ask about an applicant’s medical history, conditions, or genetic information. They may ask for medical information once they have employed the applicant, but not before, and only in limited circumstances to avoid discrimination. Additionally, employers cannot ask for someone’s genetic information, including family medical history. Again, a good guideline is only to ask if it’s necessary and relevant to the position;
• Treat All Applicants Equally: Although this sounds obvious, many employers fail to treat all job applicants equally and ask for the same information from each applicant. Employers should run the same background check for all applicants that have applied for the same position. Running checks based on a person’s protected class, such as religion or race, is deemed illegal discrimination.
• Inform Applicants and Workers About Hiring and Promotion Determinations Based on Background Check Reports: Employers are required to inform the applicant or worker of the employment determination and supply them with a copy of the background report. This ensures that the individual has ample time to examine the information and demonstrate any potentially harmful details included in the report.

What Else Should Be Considered To Avoid an Illegal Background Check?

Most state and federal laws require that academic transcripts and financial loan information are private. As such, they cannot be released without the owner’s permission, and an employer would need to ask the applicant to supply that information. Any criminal convictions which have been sealed or expunged do not have to be revealed to an employer. Generally speaking, what can be revealed differs from state to state.

Employers must get written consent to examine a person’s credit report. Should an applicant be refused a position based on their credit report when they were otherwise qualified, the employer must deliver a copy of the report to give them time to fight it. Finally, employers may run a background check into an applicant’s driving record. This is particularly valid if the position will concern commercial driving.

How Can You Make Your Employee Background Check Reasonable?

Here are some things to keep in mind when conducting an employee background check:

• Be fair: The best recommendation for an employer conducting a background check is to keep such an investigation fair. Conducting a credit report and checking up on references makes a lot of sense. Scouring court records, questioning neighbors, and demanding physicals for all of your applicants may not make much sense and may get you in trouble.
• Make your inquiry business-related: Part of being fair is assuring that your background check is business-related. If you employ a security guard, then scouring laboriously into a person’s criminal background may be highly appropriate and justified. If you hire a part-time janitor, you may not need to go to such lengths. To evade being sued, make sure to tie what you’re asking for to the position at hand.
• Get the applicant’s permission: Another way to evade liability, in general, is to get the applicant’s permission before accessing potentially susceptible data. Some things, like credit checks, expressly direct you to get the applicant’s permission. Still, even if you might otherwise have access to sensitive info, it pays to be cautious and get the applicant’s permission in writing. The easiest way to do this is simply to ask for consent on a job application.

What Are Records an Employer Can Likely Consider When Performing an Employee Background Check?

Some records, such as credit reports, drug tests, and driving records, need the applicant’s permission but are still deemed routine records when conducting a background check. As examined above, regardless of the record type, always make sure that such an inquiry is related to the job.

Do I Need an Attorney for Employee Background Checks?

Suppose you are an employer needing to conduct employee background checks. In that case, you will want to ensure that you are doing so legally, every time. Skilled and knowledgeable workplace lawyers can advise you of your state’s policies concerning employee background checks.

Additionally, an experienced employment law attorney can defend you in court if legal action is filed against you or your company. Use LegalMatch to schedule a free consultation with a lawyer in your area today.