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Background Checks: The Fine Line of Staying in Compliance

Background checks allow employers to get a clearer picture of an applicant’s job and personal history. So, what happens if you find out that the applicant has a criminal background or has been convicted of drug use?

Denying an applicant a job based on what you discover during a background check — criminal or otherwise — has the potential of landing you in legal hot water.

Title VII of the Civil Rights Act of 1964 requires employers to prove that past criminal behavior would directly impede a candidate’s ability to perform a job. In addition, the Equal Employment Opportunity Commission (EEOC) guidelines recommend that to avoid complaint issues employers should “eliminate policies or practices that exclude people from employment based on any criminal record.” Thirty-five states prohibit employers from using criminal background checks during the application process, although there’s no federal mandate requiring this practice.

Plus, there are other kinds of information you cannot use to base a hiring or firing decision. While EEOC and Federal Trade Commission rules allow employers to check an applicant’s or employee’s work history, education, criminal record, financial history, medical history or use of social media — this type of information cannot be used to deny someone a job.

Federal laws protect applicants and employees from discrimination based on:

  • Race, color, national origin, sex or religion
  • Disability
  • Genetic information (including family medical history)
  • Age (40 or older).

You also must stay in compliance with the Fair Credit Reporting Act (FCRA), which regulates how credit reporting agencies can collect, access, use and share the data they collect in consumer reports. States and municipalities also have laws regarding background reports.

One of the most important things you can do is remember to treat all applicants and employees equally. And, if you plan to do a background search, tell the applicant or employee in writing you might use the information to make decisions about his or her employment. You must get their permission in writing.

Social Media

Conducting a social media search on someone you may want to hire carries similar challenges.

A social media search can help you verify a candidate’s skills and employment history. It also can uncover whether an individual appears to be abusing alcohol or using illegal drugs or has posted racist and sexist messages.

However, like background checks, social media searches and how you use that information must be handled fairly and must follow EEOC guidelines. Here are a few things you can do to stay in compliance when using social media to do your research:

  • Do not require job applicants to give you access to their private accounts.
  • If you discover an applicant’s gender, race, sexual orientation or disabilities, you cannot use this information when making your hiring decision. You are only allowed to consider information that applies to the job they’re seeking.
  • Check your state’s laws to make sure you’re running the check at the right time in the hiring process, which usually is after you have invited the applicant for an interview or have given them a conditional job offer.
  • Any research that is conducted must be done by someone who is not involved in the hiring decision.

A good way to control compliance risk to some extent is to purchase Employment Practices Liability Insurance.