Conducting Legal Background Checks

With the number of harassment, discrimination and other employee lawsuits growing, besides examining their internal policies, employers need to be careful about who they hire.

Apart from calling previous employers and schools and checking for any lawsuits with the courts, many businesses will also consider using a vendor to do a background check and to look at an applicant’s social media posts.

The key to staying on the right side of the law is following the Fair Credit Reporting Act (FCRA). Despite its name, the law covers more than just credit checks. It governs how an employer or a third party entity gathers background information and what it can access. It established requirements for:

• Notice
• Consent
• Steps required before taking an adverse action based on information from the background check (like rescinding an offer).
• Using out-of-state agencies to pull court records.

Follow the law

The Federal Trade Commission, which regulates the FCRA, outlines the rules employers must follow on its website.

Here are the basics:

1. Always notify the employee or applicant that you plan to conduct a background check. Use a notification form with the singular purpose of notifying applicants that you plan to conduct a background check and need their consent.
2. Get written permission from the applicant or employee. This can be part of the document you use to notify the person that you will get a consumer report. If you want the authorization to allow you to get consumer reports throughout the person’s employment, make sure you say so clearly and conspicuously.
3. If you are using a third party to conduct the background check, certify that they comply with the FCRA.
4. Before you reject a job application, reassign or terminate an employee, deny a promotion, or take any other adverse employment action based on information in a consumer report, you must give them:

• A notice that includes a copy of the consumer report you relied on to make your decision; and
• A copy of “A Summary of Your Rights under the Fair Credit Reporting Act,” which the company that gave you the report should have provided to you.

Give the applicant or employee the notice in advance so they have the opportunity to review the report and tell you if it is correct.

Checking social media

Several US states have social media laws in place that restrict employers from asking job applicants or existing employees from sharing their login credentials or private information. But hiring managers and recruiters are free to check the information and photos of anyone which is available in the public domain.

If you do plan to check an applicant’s social media:

• Know what you are looking for and why the information would be relevant to your hiring decision. Remember, there are laws against considering a person’s gender, race, national origin, sexual orientation, age, disability or religion when making hiring decisions. Social media may reveal all that information.
• Is the information relevant to the hiring decision? You may find social media posts that are distasteful, and you might think based on that you would never hire the person. But you may not know the whole story behind a post.
• Is the information reliable? While you can glean some important information about somebody on their public profiles, it can also likely be a very unreliable process. Social media sources may contain false, doctored and biased information, and posts can easily be forged. People can also alter pictures using Photoshop and other editing software.
• Give a candidate the chance to explain or dispute any information you find.