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
Georgia and Virginia have become the first two southern states to enact "ban the box" laws to remove criminal history questions from state job applications. Several XpertHR sections have been updated to reflect these developments.
In-depth review of the spectrum of Virginia employment law requirements HR must follow with respect to preemployment screening and testing.
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.
Virginia has become the 15th state to enact a "ban the box" law with Governor Terry McAuliffe signing an executive order on April 3. Ban the box refers to eliminating the box on job applications that prospective employees are often asked to check off if they have ever been convicted of a crime.
In-depth review of the spectrum of Oklahoma employment law requirements HR must follow with respect to interviewing and selecting job candidates.
California employers seeking to provide notice to new hires and existing employees that they conduct background checks and do so in a manner that is compliant with applicable federal, state and local laws should consider including this model policy statement in their handbook .
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to preemployment screening and testing.
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to interviewing and selecting job candidates.
The Connecticut Supreme Court has ruled that persons convicted of possessing less than one-half ounce of marijuana have the right to get those convictions erased. The result means that thousands of job applicants previously arrested for marijuana possession may petition for a court order so that records relating to those charges are destroyed and will not be visible during a background check.
Effective March 1, 2015, New Jersey employers with 15 or more employees and employment agencies may not inquire about a job applicant's criminal record during the initial employment application process. This makes New Jersey the sixth state with 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.