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Buyer bewareBuyer beware

If you think you need a bit more background information about an employee candidate in order to make an informed decision, do you know what is permitted and how far you can go before crossing the line of violating his or her privacy rights?

As an employer you have an obligation, or “duty of care,” to protect your staff and clients from employees. Since employers can be held liable for “negligent hiring” or “failure to warn” should an employee turn violent on the job, it is crucial to follow through with a background check to ensure safety.

Before starting, it’s important to know what is permitted when following up on a potential employee's background and work history or they could take legal action against you. Since we don’t have unlimited rights to investigate an applicant's background and personal life,  the following list includes the types of information you need to know as part of a pre-employment check, and the laws governing access and use for making hiring decisions:

  • Credit Reports- The Fair Credit Reporting Act (FCRA) regulates how employers perform an employment background check on job applicants.
    • You must obtain an applicant’s written consent before seeking his or her credit report.
    • Most of us assume this just covers credit background checks, but be aware that the FCRA also covers any other background report, such as driving records and criminal records obtained from a consumer reporting agency.
    • If you decide not to hire someone based on information in the credit report, you must provide a copy of the report and let the applicant know of their right to challenge the report under the FCRA. You should also check with your state’s labor department.
    • If you use credit background checks in your hiring process, you’d better have a sound business reason for doing so or you could face a new type of litigation: Many employment attorneys are now recommending credit checks for only those with direct monetary duties. Otherwise, issues such as discriminatory hiring practices can be claimed.  
    • Credit background checks for applicants responsible for handling money offer no guarantee of sorting out the “bad eggs” in hiring.
    • The Federal Bankruptcy Act prohibits employers from discriminating against applicants because they have filed for bankruptcy.

  • School Records- Under the Family Educational Rights and Privacy Act and similar state laws, educational records (such as transcripts, recommendations, and financial information) are confidential, and will not be released by the school without a student's consent.

  • Criminal Records- In April of this year, the Equal Employment Opportunity Commission (EEOC) updated and amended Title VII of the Civil Rights Act of 1964, which regulates the use of arrest or conviction records in employment decisions. According to Section VI-(A) 49 U.S.C. �� 44935(e)(2)(B), 44936(a)(1), (b)(1), the statute mandates a criminal background check and states, “Federal laws and regulations govern the employment of individuals with specific convictions in certain industries or positions in both the private and public sectors. For example, federal law excludes an individual who was convicted in the previous 10 years of specified crimes from working as a security screener or otherwise having unescorted access to the secure areas of an airport.” As flight schools, we are clearly required to verify with federal agencies any hiring decisions of candidates with criminal records, so remember that when in doubt, a good rule of thumb if a background check comes back with any arrest or conviction, consider consulting with a lawyer to do further legal research before making any hiring decisions to ensure you are not violating state or federal laws. Criminal checks can be by the Federal Bureau of Investigation (FBI) Services for Businesses. They offer assistance to businesses in the areas of employee background investigation, antitrust investigation, trade secret and intellectual property protection, cyberspace patrol, economic espionage, and anti-terrorism.

  • Checking References- Contacting an applicant’s former employers is an essential step in conducting an employment background check.
    • Keep in mind that you can’t ask a reference any questions you are prohibited from asking an applicant.
    • Restrict your inquiry to job-related issues.
    • You must also check information furnished by all candidates without discrimination against any group. Many employers have been snagged for making cursory checks of white applicants but probing more deeply in the case of minorities.

  • Screening Candidates- Don’t consider the Internet a reliable substitute for traditional hiring practices. A YouTube video may provide a glimpse of a candidate’s personality, but a face-to-face interview will probably reveal much more of a candidate’s true personality.
    • When it comes to discrimination, ignorance is often bliss. It’s impossible to discriminate based on information you don’t have; by gathering information about job candidates through websites such as Google, Facebook, and MySpace, you expose yourself to discriminatory failure-to-hire lawsuits.
    • By viewing a candidate’s Facebook page that may provide their age, race, gender, disability, or other protected characteristics, you’ve lost the ability to claim ignorance.

  • Sexual Offender Registry- Since each state’s law is different, you’ll have to check the rules before using the sex offender registry information. In most states you can and should scan the registry if an applicant will have any occasion to work around children or the disabled on the job.

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