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
An employer's use of background checks raises many compliance issues, including the Fair Credit Reporting Act; the state "ban the box" trend that prevent employers from asking criminal history questions on initial job applications; and ensuring background checks do not discriminate against minority job applicants.
Illinois will become the fifth state to prohibit most private employers from asking criminal history questions on job applications. The Job Opportunities for Qualified Applicants Act will take effect January 1, 2015 and applies to employers with 15 or more employees.
Illinois is the fifth state to enact a law banning most private employers from asking criminal history questions on job applications.
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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 New York employment law requirements HR must follow with respect to preemployment screening and testing.
One of the fastest-moving trends in employment law involves the plethora of "ban the box" laws that have sprouted up in a dozen states and more than 60 municipalities. These laws make it illegal to include criminal history questions on initial job applications.
Legal considerations for HR concerning employee background checks of job applicants and employees. Support on properly conducting background checks.