Any time an employer makes a personnel decision, including hiring, promoting, or reassigning an employee, they can legally try to find out more about the person’s education, work history, financial history, and criminal record. It’s perfectly legal for an employer to run a background check so long as the check complies with federal and state laws. Below are some basic guidelines for employers to avoid running an illegal background check.
- Run a background check when permitted: A background check can help verify that a job applicant is the right person for the job. Background checks can be especially important for positions that involve handling personal or financial information. They can also help employers from being liable for the conduct of an employee who is not fit for the job.
- Obtain written consent: Written consent is required to check a person’s credit report, criminal background check, and educational information such as school transcripts. Notwithstanding, employers cannot force an applicant to sign a consent form, but they are entitled to the information they seek. If a job applicant refuses to give consent, the applicant can be taken out of the running for a position.
- Background check needs to be job-related: Some questions you can ask a job applicant outright, but for additional information for which a background check is necessary, make sure the information is job-related. For example, if you’re hiring a security guard who will carry a weapon, checking the person’s criminal record would likely be okay. Conversely, a criminal background check on a receptionist at a dental office may be unnecessary given the person’s desired position.
- Asking about medical/genetic information is not permissible: Do not ask questions about a job applicant’s medical or genetic information. Employers can ask for medical information after an applicant receives the job, but not before. Employers aren’t allowed to ask for someone’s genetic information, including family medical history, except in extremely limited circumstances.
- Treat all applicants equally: Run the same check for all applicants applying for the same position. It is illegal for employers to discriminate, so running background checks based on a person’s race, color, national origin, sex, religion, disability, or any other protected category is illegal.
- Use good judgment: Do not go overboard with a background check. Make sure that your check applies to the job. A full background check on someone who does not require it is unnecessary and exposes yourself to liability for an unlawful background check.
- Notify applicants and employees about hiring/promotion decisions based on background reports: Employers must notify the applicant/employee of the employment decision and provide the person with a copy of the background report. This way, the person has ample time to review the report and explain away any negative information discovered via a background check.
Guidelines for Searching an Applicant’s Records
Background checks that are conducted wrong may be considered illegal. Below are some guidelines for searching an applicant’s records based on the type of records you seek.
- Educational Records (such as academic transcripts): Most state and federal laws make academic transcripts and financial loan information confidential and can’t be released without the person’s consent. You may ask the student to provide the information to avoid asking her to consent to a check.
- Criminal Records: Any criminal convictions which are sealed or expunged need not be disclosed. In general, what can be disclosed depends o the state in which you reside.
- Credit information: An employer must obtain written consent before researching a person’s credit report. If the applicant is denied a job based on the credit report, the employer must provide the applicant with a copy of the credit report and give her time to dispute it.
- Driving Record: Employers are allowed to conduct a background check on an applicant’s driving record. This is especially true if the job involves commercial driving.
It is best for an employer to inform a job applicant or employee that a background check will be conducted and obtain written consent.
Do I Need a Lawyer to Assist with Employee Background Checks?
If you’re an employer who is seeking to hire new employees, or are interested in conducting background checks on employees up for promotion, it’s important that you know your state guidelines regarding background checks. An illegal background check can expose you to liability. For this reason, you may wish to hire an employment lawyer for assistance. Your lawyer can also defend you if a legal action is filed against you or your company.