Illegal Background Checks- Guidelines for Employers
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What are Some General Employer Guidelines for Avoiding Illegal Background Checks?
Illegal background checks can lead to many negative consequences for employers. In general, it’s ok to conduct a background check for a job applicant, so long as it’s done according to the laws in your area. Some basic guidelines for avoiding illegal background checks include:
- The Background Check needs to be Job-Related: Make sure you only search for and discuss information that is related to the position the person is applying for. For example, if you’re hiring a security guard, checking their criminal record might be ok, especially if they will be carrying a weapon. On the other hand, a similar criminal background check might be unnecessary for administrative personnel.
- Obtain the applicant’s Consent: One of the surest things you can do is to ask for the applicant’s consent to a background check. Most applicants understand that a background check is sometimes a necessary part of the hiring process. It’s best to get their consent in writing, and to provide them with a notification of what the background check will involve.
- Exercise Reason and Sound Judgment: It’s not a good idea to go overboard with every single job applicant. For example, it’s not always necessary to get the full rundown on an applicant, such as running credit checks, searching public records, etc. Again, stick to background checks that are focused on the nature of the job description.
Also, you should understand that background checks may be required by law for certain job positions, such as federal jobs or other governmental positions. If you are in a position to hire such applicants, failing to conduct the background check as required by law could get you into legal trouble.
What are Some Guidelines When it Comes to Searching the Applicant’s Records?
A background check might also be considered illegal if you search the applicant’s records in the wrong way. Some guidelines regarding the search of records are:
- Educational Records (academic transcripts): Under most state and federal laws, student academic transcripts and financial loan information are confidential. In other words, they can’t be released without the student’s consent. Also, many institutions only release such information directly to the student, and the process can take a few weeks.
- Criminal Records: Convictions that have been sealed or expunged from an applicant’s records don’t need to be disclosed. However, there is much variation from state to state in this regard. For example, some states allow criminal records to be disclosed for certain job positions (such as childcare workers). Or, some states only allow employers to consider those convictions that are specifically related to the job descriptions.
- Credit Information: An employer needs to get the applicant’s written consent before they can research their credit reports. If the applicant was denied the job based on the credit report, the employer usually needs to inform them of this and provide them with procedures for challenging the credit report. Also, it is illegal to discriminate against a job applicant or employer because they have filed for bankruptcy in the past.
- Medical Records: Under federal statutes, employers can’t request the applicant’s medical records. They are only allowed to make inquiries regarding the person’s ability to perform specific tasks. Employers also cannot discriminate based on a person’s disability. Laws also limit employer’s access to the person’s genetic information.
- Driving Record: Employers may be required by law to conduct a background check on an applicant’s driving record, especially if the job involves commercial driving. These records can usually be obtained at the state vehicle department.
- Military Service Records: Employers can obtain a former service person’s name, rank, duties, awards, and salaries without the person’s consent. Consent is required for access to other military information, such a history of misconduct in the military.
Again, the safest thing for an employer to do is to inform the applicant that they will be conducting a background check, and then obtain their consent in writing to access their records. You may wish to do some basic research of the laws in your jurisdiction, particularly with regards to the rules on criminal records. If you are unsure, don’t perform a background search until you have consulted with a lawyer for advice.
Do I Need a Lawyer for Assistance with Background Checks?
If you are an employer seeking to hire new workers, be sure that you follow the guidelines regarding background checks. An illegal background check can be very costly to business. You may wish to hire a lawyer for assistance when formulating your background check policies, or if you have any specific concerns or questions. Your lawyer can also help defend you if legal action is filed against you or your company.
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Last Modified: 04-12-2012 02:45 PM PDT
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