More and more employers are using outside vendors to do background checks. According to Jules Halpern of Jules Halpern Associates, LLC, anytime an employer uses an applicant’s background information to make an employment decision, the employer must comply with federal, state and local laws that protect job candidates. Here are the laws impacting background checks.
1. If an employer uses a third-party company in the business of compiling background information, the employer must comply with the Fair Credit Reporting Act. Before doing so, the applicant must be notified in writing that the background check will be conducted and may impact on their eligibility for employment. This notification must be a stand-alone document and be separate from the employment application. The applicant must provide written consent to this. Also, if the background check includes personal interviews, the applicant has a right – and must be told of that right – to a description of the nature and scope of the interviews.
Any background information received cannot be used to discriminate against the applicant. Should the report include adverse information, there are specific forms that need to be distributed to the applicant and must include particular language outlining the applicant’s rights. The employer has a duty to present the findings to the applicant and give the applicant the opportunity to dispute or explain the adverse information.
2. In addition to federal laws, many states have implemented ‘ban-the-box’ laws. These laws prohibit employers from inquiring, in the initial states of the selection process, about the applicant’s criminal conviction history. (FYI, a total of 31 states have adopted statewide laws or policies—Arizona (2017), California (2017, 2013, 2010), Colorado (2012), Connecticut (2016, 2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Indiana (2017), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2016, 2015), Virginia (2015), Washington (2018), and Wisconsin (2016). Eleven states—California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington—have also mandated the removal of conviction history questions from job applications for private employers.
Know Your Rights!
Marie Raperto, The Hiring Hub