Employers often need to perform pre-employment background checks on applicants to assess honesty, criminal background, credit history, military service, school records, and other related matters. While the type of job will generally determine whether to perform a pre-employment background check, and what kind, the following 10 tools should be considered:
- Credit Reports. Under the Fair Credit Reporting Act, businesses must obtain an applicant’s written consent before seeking his or her credit report from one of the big three agencies: Experian, TransUnion, and Equifax. Anyone not hired or promoted based on a credit report must be provided with a copy of the report and given a chance to challenge the report.
- Criminal Records. Accessing and utilizing an applicant’s criminal record is generally governed by state law and is sometimes required when the position deals with children, banking, or sensitive data. Criminal background checks can be complicated; consulting with an experienced business attorney is always to your advantage.
- Drug Testing. Employers generally have a very wide latitude when it comes to pre-employment drug testing. They must follow their state’s rules about providing notice and must follow procedures to avoid inaccurate sampling and discrimination. Many employers will make employment offers contingent upon an applicant’s successful drug test.
- Lie Detector Tests. The Employee Polygraph Protection Act prohibits most private employers from using lie detector tests. However, for those jobs with security service firms and pharmaceutical manufacturers, distributors, and dispensers, there may be an exception.
- Medical Records. The Americans with Disabilities Act forbids employers from discriminating against applicants based on a physical or mental impairment or requesting an applicant’s medical records. However, an employer can condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam if all new employees in the same job have to answer the questions or take the exam. It’s important to know your state’s law as some provide even greater protections. Although businesses cannot ask about a specific disability, they can inquire about an applicant’s ability to perform specific job duties.
- Bankruptcies. Although bankruptcies are public record and may appear on an applicant’s credit report, the Federal Bankruptcy Act prohibits employers from discriminating against applicants because they have filed for bankruptcy.
- Military Service. The U.S. government may release a member of the military’s name, rank, salary, duty assignments, awards and duty status without the service member’s consent. However, anything more than that generally requires the applicant’s consent.
- School Records. The Family Educational Rights and Privacy Act forbids schools from releasing educational records such as transcripts, recommendations, and financial information without a student’s consent as that information is considered confidential.
- Workers’ Compensation Records. Workers’ compensation records are generally a matter of public record, but employers can only use the information if the applicant’s injury might interfere with his or her ability to perform required duties.
- Social Media. Although not technically a background check, social media outlets like Facebook, LinkedIn, Twitter, and the ever-increasing array of online data sharing mechanisms as well as a “plain” Google search of an applicant’s name are often seen as another way to look into someone’s background and lifestyle. Be careful what you look for because if you make an adverse employment decision based on that information, you could find yourself in court.
Avoiding Discrimination Is Key
Regardless of the types of pre-employment background checks you use, the key to success is avoiding unlawful discrimination. We can help you determine what might constitute discriminatory behavior on an overall policy level and on a case-by-case basis. Give us a call us to get your legal and effective pre-employment check in place.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."