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
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Ohio and Oregon have each taken steps to prohibit criminal history questions on initial job applications. Ohio has adopted a state policy to remove criminal history inquiries from state job applications. Meanwhile, Oregon has enacted a law that also will ban criminal history questions from job applications, and will apply to private and public employers subject to limited exceptions.
Oregon could soon become the 18th state with a "ban the box" law if Governor Kate Brown signs the legislation as expected. The bill would prohibit most employers from asking criminal history questions on job applications. New York City also recently passed a "ban the box" law affecting private employers.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.