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
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to preemployment screening and testing.
As of November 1, 2013, all City of Seattle employers are prohibited from asking criminal history questions on initial job applications under a new Ban the Box ordinance. This mirrors the EEOC's view that employers should avoid such inquiries on employment applications. There are 10 states that have passed varying Ban the Box laws.
A new California law that will soon ban state and local government employers from asking criminal history questions on job applications has led to several XpertHR sections being updated.
A new California law will prohibit all state and local government employers in the state from asking for criminal record information on initial job applications.
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.
The Equal Employment Opportunity Commission recently responded to a letter from state attorneys general urging the EEOC to reconsider aspects of its 2012 Enforcement Guidance on the use of arrest and conviction records by employers. In response, the EEOC reiterated its position that while it is not illegal for employers to conduct criminal background checks, the use of such background checks based on arrest and conviction records could have a disparate impact on minority groups resulting in discrimination under Title VII of the Civil Rights Act.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to Interviewing and Selecting Job Candidates
XpertHR has updated a trio of Illinois sections to reflect new laws designed to make it easier for employers to hire qualified job candidates with criminal records.
In-depth review of the spectrum of Texas employment law requirements HR must follow in respect to minimizing risks of negligent hiring.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.