Overview: Proactive employers often turn to employee background checks in an effort to ferret out high-risk job candidates. This can include a check of criminal history records, as well as an applicant's credit history and references.
However, there are several steps an employer must take to ensure such measures comply with the law. In particular, it must follow the federal Fair Credit Reporting Act's notice and consent requirements before conducting a background check. In addition, HR should be aware that some states prohibit employers from asking about arrest records and limit or prohibit consideration of convictions that have occurred long ago.
An employer that decides to conduct employee background checks of prospective employees should do so consistently to avoid the risk of a discrimination claim. Statistics have shown that such checks tend to have a greater impact on minority applicants.
Trends: Several states, including California, Illinois and Connecticut, have enacted laws in the last few years limiting the use of credit checks to certain types of jobs such as those involving financial data or sensitive information. A host of similar measures have been introduced elsewhere, so this is a trend that bears watching.
Author: David B. Weisenfeld, JD, Legal Editor
New York is not quite California when it comes to employment law, but the Empire State has taken steps in that direction the past year with many new developments affecting employers. On this podcast, New York City employment attorney Jason Habinsky, of Haynes & Boone, examines the changes at both the state and local level.
Maryland employers seeking to provide notice to applicants and existing employees that they conduct background checks for certain positions in compliance with Maryland law should consider including this model policy statement in their handbook.
Employers seeking to provide notice to new hires and existing employees that they conduct background checks should consider including this model policy statement in their handbook.
Employers seeking to create a uniform process regarding their response to external requests for references or employment verification should consider including this model policy statement in their handbook.
In-depth review of the spectrum of New Hampshire employment law requirements HR must follow with respect to interviewing and selecting job candidates.
In-depth review of the spectrum of North Carolina employment law requirements HR must follow with respect to preemployment screening and testing.
Employers must be careful about conducting criminal background checks in the preemployment screening process and asking job applicants about their arrest and conviction records. This How To helps an employer with the steps to ensure criminal background checks are used legally and fairly.
A new Washington, DC law bans employers with more than 10 employees from seeking criminal background information about job applicants until after a conditional employment offer has been made.
The introduction of federal "Ban the Box" legislation follows that of a host of big cities and some states which already have enacted laws prohibiting employers from asking applicants if they have been convicted of a felony on initial application forms.
In-depth review of the spectrum of District of Columbia employment law requirements HR must follow with respect to preemployment screening and testing.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.