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Podcast: Why Background Checks Pose Catch-22 for Employers

Background checks raise a host of issues for employers, especially with the trend of state and local "ban the box" laws that prohibit criminal history questions until later in the hiring process.

On this podcast, New Jersey employment attorney Steven Luckner of Ogletree Deakins explores why employers must be discerning when it comes to seeking criminal history information. Luckner explains that background checks are ripe for technical violations, much in the way that wage and hour litigation can be. "It's an issue that lends itself to class actions," he says. "An employment application is a really good place to find numbers and collect all the applications that an employer has issued."

Why Background Checks Pose Catch-22 for Employers

February 3, 2017

"People still don't fully understand what they can and can't do in the background check process," adds Luckner. This includes the need to obtain consent; what to include in an adverse action letter; and the wide variations in state and local laws.

HR professionals who rely on the credit reporting agencies for disclosure forms are in for a "rude awakening," Luckner says. Nonetheless, he notes that a failure to conduct a background check at any point could put an employer at risk for a negligent hiring lawsuit.

Additional Resources

Ban the Box Laws by State and Municipality

How to Exercise Reasonable Care in the Hiring Process

How to Use Criminal Records for Employment Purposes