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 firstname.lastname@example.org.