Background checks have become a standard part of pre-employment screening across a variety of fields. Federal and state laws authorize employers to perform these checks, and in some cases even require them for certain positions. However, authorization to perform a background check should not be interpreted as carte blanche permission to pry into an applicant’s personal affairs. State laws vary on the matter and in some cases are more restrictive than federal laws. Therefore, it would be prudent for an employer to seek the advice of an attorney prior to designing a plan for background checks. Provided here, however, is a general guideline to keeping background checks legal.
Get Written Consent
This is perhaps the most basic step toward keeping your background checks legal. Many employers now routinely enclose consent forms in all applications, regardless of position. Delineate exactly what records will be checked and have the applicant sign a consent form. It is legal to refuse to hire an applicant that does not consent to a reasonable background check.
No applicant is required to submit to an unreasonable background check. Be sure that there is a solid reason behind each record check that you perform. For example, credit history may reasonably be checked for applicants for a heavy cash-handling position. A criminal background check is appropriate for a position that involves taking care of medical patients or handling weapons.
Commonly Checked Records
The following records are among the most commonly checked by employers. Some require special handling or consents.
School Records – School records are considered confidential. It is generally easiest and most prudent to request that school transcripts be submitted by the applicant rather than the school.
Credit Report – Written consent must be provided for a credit check to be performed. It is illegal to refuse to hire someone due to a previous bankruptcy. Finally, if you do not hire an applicant based on the credit report, you must provide information on challenging the report under the Fair Credit Reporting Act.
Criminal Record – Due to privacy issues, criminal record reports are highly regulated. States vary widely on the relevant laws. Therefore, it is strongly recommended that you seek qualified legal advice before attempting to perform fingerprinting and criminal background checks.
Workers Compensation and other Medical Records – Under federal law, employers are only allowed to consider those factors that may render the applicant unable to perform the job with or without reasonable accommodation. Employers are not allowed to directly check medical records.
The Bottom Line
Background checks are a common and important part of applicant screening. However, employers must always keep in mind the applicant’s right to privacy. To keep yourself on the right side of the law, make sure that you investigate only those elements that are relevant to the position. Always get written consent for any background check, and pay special attention to those checks that could be considered discriminatory. Because state laws differ, it is highly recommended that you consult with an employment attorney prior to designing your background check procedure.