Criminal Record Check
It is common for employers to conduct a non-intrusive background check on potential employees as part of a risk assessment. However, the problem comes when employers violate the privacy rights of other people with their overzealous background checking.
Risk Mitigation
Presented here is a quick guide for employers (and more specifically, their human resources department) to consider in an attempt to avoid violating the rights of the applicant and landing themselves in hot water:
1) Ask only questions that are related to work. Employers should only ask questions that are relevant to the position being applied for. For example, if someone is applying for a secretarial position, it would be unnecessary to ask them about their credit history or marital status.
2) Ask for the applicant's consent before conducting a thorough background check. To avoid being sued, employers can ask an applicant to make a written consent stating that he or she allows the company to conduct a background check. However, employers should clearly explain what information they need to know and the methods by which they will use to retrieve the information sought.
Note: Depending on the law in your state, when applicants refuse to consent to reasonable background checks, the employer may be legally entitled to reject them for the job.
3) Do not be overzealous with your background checking. Violation of privacy starts when employers conduct unnecessary investigations into an applicant.
While the guidelines stated above will help employers to avoid committing unlawful background checks, some information such as criminal, medical, and school records are still needed to help employers decide if an applicant deserves to be hired or not.
To avoid litigation, employers should consult with their local, state or federal government (or in-house counsel) regarding any Privacy Act and other laws that may apply when conducting background checks (especially criminal record checks).
Background Report Ideas
Bankruptcy: Federal Law states it is unlawful to discriminate employees who have filed for bankruptcy at some point in their lives.
Credit reports: Before a company checks the credit report of applicants, it is required to get a written consent from them. Failing to do so will make employers liable for violation of privacy under the Fair Credit Reporting Act (FCRA).
Criminal Record Check: Some states prohibit employers from inquiring about arrest and crimes committed by the applicant in the past (unless when the job requires a person to have no criminal record). Certain positions such as healthcare workers, security guards, and private detectives cannot have any criminal history.
School Records: Federal Law states that school records, such as transcripts and recommendations, are confidential. Therefore most schools only release such records directly to the students or where they have provided consent for release to a 3rd party
Medical Records: According to the Americans with Disabilities Act (ADA), employers should not discriminate against a worker based on disability. Also they should not ask applicants about their medical records unless this is relevant to the position applied for.
Driving Record: Available from the DMR and authorised parties, this information will only be necessary when an applicant will be required to operate a vehicle for an extended duration.
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