Up to 40 percent of resumes can contain
false or exaggerated information,
according to popular statistics circulating in the business community. It’s no surprise, then, that so many employers want to
ensure that what they are getting in an
employee is what they are promised.
Over the years, however, laws that govern
background checks have evolved into a legal
morass. Federal and state agencies have
issued guidelines that also apply to background checks. The Equal Employment
Opportunity Commission (EEOC) has issued
selection guidelines, and the laws that apply
include the Fair Credit Reporting Act (FCRA)
and — in Pennsylvania — the Criminal
History Record Information Act (CHRI), the
Child Protective Services Act and the Older
Adult Protective Services Act.
“It’s kind of a maze that employers have to
navigate because a lot of federal and state
laws can come into play,” says attorney Sheri
Giger, an associate with Jackson Lewis LLP.
“It’s not a simple topic.”
Smart Business talked to Giger about how
companies should approach background
checks on potential employees.
What areas can an employer legally check?
Depending on the job, an employer can
request an applicant’s criminal records, plus
verify education, prior employment and credit reports. The people you have doing the
checking just have to work within legal
parameters. A background check could
include a credit report. Some employers do it
as a matter of course, while some just do it
for particular positions because of the nature
of the job. There are also cost factors to be
considered. One of the newer trends is for an
employer to ‘Google’ the names of prospective employees on the Internet. If it’s public
information, there’s nothing illegal, per se,
about referencing that information during
applicant screening. However, employers
cannot always be sure whether the information they obtain from a Google search is
accurate, particularly regarding an applicant
with a very common last name.
What laws come into play?
When conducting background checks, an
employer first needs to determine whether it’s covered under the federal FCRA. If it uses
a third party on its behalf, a ‘consumer reporting agency’ under the FCRA, the employer is
required to obtain consent for a background
check. If the background check reveals anything that could lead to an adverse employment decision, then the employer has to disclose that information to the applicant as
well as meet additional notice requirements.
If there is not a third-party consumer
reporting agency conducting the background
check, the employer still has to be aware of
state laws that may regulate the process. In
Pennsylvania, the CHRI states that an
employer can only consider felony and misdemeanor convictions from a background
check. If such convictions exist, the employer can consider them only to the extent that
they relate to the job for which the person is
applying. The CHRI requires employers to
notify applicants in writing that the reason
they are not being hired is based in whole or
in part on their criminal history. Another
wrinkle in Pennsylvania is that the Human
Relations Commission pre-employment inquiry guidelines do not allow an employer to
consider misdemeanor convictions, which
the CHRI permits in certain circumstances.
The EEOC also comes into play. Under its
guidelines, you can’t make personnel decisions on the basis of arrest records that don’t involve subsequent convictions. Generally
speaking, employers simply should not consider arrest records. The EEOC guidelines
are similar to the CHRI because a conviction
can be considered only if there’s a relationship between the conviction and the applicant’s fitness for a particular position. But the
EEOC requires employers to look at other
factors related to the situation, such as when
an offense took place, its seriousness and
whether rehabilitation has been involved.
Also, if you’re an employer in a particular
industry, there may be other state-mandated
background check requirements. For instance, if you’re involved in the care of children, you likely have to comply with the
Child Protective Services Act. If you’re an
employer that deals with the older population, there’s a statute in Pennsylvania called
the Older Adult Protective Services Act that
may apply. Both contain a laundry list of
criminal offenses (including different levels
of misdemeanors) for which an applicant is
not permitted a job if previously convicted.
It’s a heightened requirement, and it’s industry-specific.
Is there anything that an employer should not
check or question?
Any protected characteristic such as religious background, whether the applicant has
a disability, national origin or ancestry and
family status shouldn’t be considered in making an employment decision, because the
employer may run the risk of facing a failure-to-hire discrimination charge based on a protected characteristic. Both the EEOC and
Pennsylvania Human Relations Commission
list a host of questions that you’re not permitted to ask an applicant. If an employer falls
under the federal Fair Credit Reporting Act,
there are certain protections for both the
employer and the employee. If, for instance,
employers receive information that raises
eyebrows during a background check, they
are required to ask the applicant about it,
because it may have been misreported and
thus inaccurate. On the flip side, the FCRA
allows an applicant to know that some incorrect personal information might be circulating. In that case, the applicant has the opportunity to correct the information.
SHERI GIGER is an associate with Jackson Lewis LLP. Reach her at (412) 232-1983 or [email protected].
