Employee Background Check

Employee Background Checks: Where Employers are Crossing the Line

Employers have many tools at their disposal to weed out questionable employees, but all the information obtained is not permissible by law to use in the hiring process. Employers who are not familiar with hiring practices often overstep their bounds. The majority of employers are going to use all the information they have on an applicant to make a hiring determination. Once a potential employer knows negative information, it is difficult not to consider it.

Criminal Background Check

It is illegal for employers to deny employment simply because an applicant has a criminal record. The reported criminal offenses must relate directly to the position for which they are applying. For example, it is legal for an applicant that has a criminal history of driving under the influence or driving while drunk to lose a job opportunity that requires them to drive. If driving has nothing to do with the job opening, the criminal information cannot legally be a hiring consideration.

Inaccurate Information

Background screenings, according to the National Consumer Law Center, often contain mistakes. Some of those noted by the center are erroneous information due to mistaken identity, errors in identifying charges as misdemeanors or felonies, expunged information or sealed records, confusion about the manner in which a charge was resolved and misleading or incomplete data. Employers can contact their state Attorney General’s Office to find out what criminal items are legal to use for screening.

Employee Protection

Employers often take into account everything on a criminal background check, but cite another reason for denying employment. Several state and federal laws protect people from unfair hiring practices such as Discrimination Laws, Defamation Laws, the Bankruptcy Act and the Fair Credit Reporting Act. Additional laws may apply on the state level, but vary from one state to another.

Discrimination Policies and Defamation Laws

It is illegal to discriminate against any sector of society. Employers cannot deny employment based on income, race, religion, gender, age, disability or sexual orientation. Defamation Laws exist so previous employers cannot commit libel or slander against a past or present employee who is seeking a job. Some states allow past employers to relate truthful, job related information. In 2001, a discrimination class action lawsuit was filed against Walmart by six women and escalated into a million women by 2010. It is the largest class action lawsuit ever filed for sexual discrimination.

Fair Credit Reporting Act and Bankruptcy Laws

A bankruptcy may appear on a credit report, but Bankruptcy Laws prohibits employers from denying employment to people who have filed bankruptcy. The Fair Credit Reporting Act requires specific guidelines an employer must follow to consider credit reports. The employer must inform the applicant that a credit check is required and obtain written permission before obtaining a credit report. If non-employment results because of information on the report, employers must provide the applicant with a copy of the report and notify them of their right to contest any information reported.

Medical Information

Employers cannot legally request health information from an applicant. Health records receive protection under the HIPPA Law. An obvious disability is not grounds for denying employment unless it prevents the applicant from performing the job duties. It is illegal to consider workers compensation claims in the hiring decision. A lawsuit was filed by the EEOC against John Muir Health for denying employment to people allergic to latex. The EEOC alleged employment was denied because a medical disability. John Muir Health later settled the claim out of court

Equal Employment Opportunity Commission

The EEOC is a commission meant to protect employees from unfair hiring practices and adverse working conditions. In an effort to curb employers from overstepping boundaries, the EEOC is starting to implement more stringent hiring guidelines. The EEOC has accused Kaplan Higher Education Corporation of illegally using credit checks to deny employment for job positions that have no bearing on the information. The lawsuit alleges that Kaplan’s hiring practices requiring credit checks unfairly discriminates against the African American population.

Certain Job Positions Rely on Background Checks for Safety

Jobs in service-related industries including health care, day care and schools are required to check out applicants backgrounds to keep patients and children safe. There is a fine line between safe hiring practices and overstepping boundaries. High security jobs such as airports and government jobs require employers to have vigilant hiring practices. If a specific piece of employee information in a background check is illegal to consider, the employer is overstepping boundaries if it is considered anyway.