Running Background Checks on Job Applicants
You must respect a job applicant's privacy rights when conducting a background check.
When making a hiring decision, you might need a bit more information than an applicant provides. After all, some folks give false or incomplete information in employment applications. And workers probably don't want you to know certain facts about their pasts that might disqualify them from getting jobs. Generally, it's good practice to do a little fact checking before you make a job offer.
However, you don't have an unfettered right to dig into applicants' personal affairs. Workers have a right to privacy in certain personal matters, a right they can enforce by suing you if you dig too deeply. And, you may be legally required to follow certain procedures -- such as getting the applicant's consent in writing -- before you can get certain records. Follow these tips to stay out of trouble:
- Make sure your inquiries are related to the job. If you decide to do a background check, stick to information that's relevant to the position for which you are hiring. For example, if you're hiring a security guard who will carry a weapon and be responsible for large amounts of cash, you might reasonably check for past criminal convictions. If you're hiring an administrative assistant, however, a criminal background check is probably unnecessary.
- Ask for consent. You are on safest legal ground if you ask the applicant, in writing, to consent to your background check. Explain clearly what you plan to check and how you will gather information. This gives applicants a chance to take themselves out of the running if there are things they don't want you to know. It also prevents applicants from later claiming that you unfairly invaded their privacy. If an applicant refuses to consent to a reasonable request for information, you may legally decide not to hire the worker on that basis.
- Be reasonable. Employers can get into legal trouble if they engage in overkill. You will not need to perform an extensive background check for every position. Even if you decide to check, you probably won't need to get into extensive detail about every possible issue that comes to mind. If you find yourself questioning neighbors, ordering credit checks, and performing exhaustive searches of public records every time you hire a clerk or counterperson, you need to scale it back.
In addition to these general considerations, specific rules apply to certain types of information:
- Consumer reports. Under the Fair Credit Reporting Act, or FCRA (15 U.S.C. §1681), employers must get an employee's written consent before hiring a third party agency to provide a consumer report. A consumer report includes any information regarding an applicant's credit or character, including information about credit history, criminal history, and employment history. If you decide not to hire or promote someone based on information in the consumer report, you must provide a copy of the report and let the applicant know of his or her right to challenge the report under the FCRA. Some states have more stringent rules limiting the use of consumer reports, including checking an applicant's credit history. For more information, see Nolo's article Running Credit Checks on Job Applicants.
- Bankruptcies. Under FCRA, consumer reports may not include bankruptcy records that are more than ten years old. While federal law prohibits employers from discriminating against employees because they have filed for bankruptcy, the same protections do not apply to applicants.
- Criminal records. FCRA prohibits consumer reports from including arrest records that are more than seven years old, unless the position pays an annual salary of more than $75,000. However, there is no time limit on conviction records. Many states have additional requirements regarding the use of an applicant's criminal history in making hiring decisions. Some states prohibit employers from asking about arrests that did not lead to convictions, convictions that occurred well in the past, juvenile crimes, or sealed records. Some states allow employers to consider convictions only if the crimes are relevant to the job. And some states allow employers to consider criminal history only for certain positions, such as nurses, childcare workers, private detectives, and other jobs requiring licenses. For your state's rules, see State Laws on Use of Arrests and Convictions in Employment.
- School records. Under federal law and the law of some states, educational records -- including transcripts, recommendations, and financial information -- are confidential. Because of these laws, most schools will not release records without the consent of the student. And some schools will only release records directly to the student.
- Workers' compensation records. An employer may consider information contained in the public record from a workers' compensation appeal in making a job decision only if the applicant's injury might interfere with his or her ability to perform required duties.
- Other medical records. Under the Americans with Disabilities Act (ADA), employers may inquire only about an applicant's ability to perform specific job duties; they may not request an employee's medical records. An employer may not make a job decision (on hiring or promotion, for example) based on an employee's disability, as long as the employee can do the job, with or without a reasonable accommodation. (For compliance tips, see Nolo's article Avoid Disability Discrimination When Hiring New Employees.) Some states also have laws protecting the confidentiality of medical records.
- Genetic information. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from making hiring decisions based on an applicant's genetic information. It also prohibits employers from requiring or asking applicants to provide genetic information (for example, as part of a medical examination). If the employer learns about an applicant's genetic information inadvertently (for example, because the employee mentions it during the job interview), the employer may not use that information in the hiring process.
- Records of military service. Members and former members of the armed forces have a right to privacy in their service records. These records may be released only under limited circumstances, and consent is generally required. However, the military may disclose name, rank, salary, duty assignments, awards, and duty status without the member's consent.
- Driving records. An employer should check the driving record of any employee whose job will require large amounts of driving (delivery persons or bus drivers, for example). These records are available, sometimes for a small fee, from the state's motor vehicles department.
- Other negative information. FCRA prohibits the inclusion in a consumer report of any negative information that is more than seven years old.
For more information on hiring, see Dealing With Problem Employees, by Amy DelPo and Lisa Guerin (Nolo).