Using Pre-employment Information Services

Numerous firms such as Hire check now provide employment screening services. Firms like these use databases to accumulate information about matter such as workers’ compensation and credit histories, and conviction and driving records. For example a South Florida firm advertises that for under $50 it will do a criminal history report, motor vehicle / driver’s record report, and (after the person is hired) a workers’ compensation claims report history, plus confirm identity, name, and Social Security number.

There are two reasons to use caution when delving into an applicant’s criminal, credit, and workers’ compensation histories. First, equal employment laws discourage or prohibit the use of such information in employee screening. For example, the ADA prohibits employers from making pre-employment inquires into the existence, nature or severity of a disability. Therefore, asking about a candidate’s previous workers’ compensation claims before offering the person a job is usually unlawful. Similarly asking about arrest records may be discriminatory.

Second, various federal and state laws govern how employers acquire and use applicants and employees background information. At the federal level, the Fair Credit Reporting Act is the main directive. In addition, at least 21 states impose their own requirements. Compliance with these essentially involves four steps as follows:

Step1: Disclosure and authorization: Before requesting consumer or investigative reports form a consumer reporting agency, the employer must disclose to the applicant or employee that a report will be requested and that the employee / applicant may receive a copy.

Step2: Certification: The employer must certify to the reporting agency that the employer will comply with the federal and state legal requirements. (The reporting agency will generally provide the employer with a form for satisfying this requirement). The employer certifies, among other things that the employer made the disclosures outlined above in step 1 and that it obtained written consent from the employee or applicant.

Step 3: Providing copies of reports: Under federal law, the employer must provide copies of the report to the applicant or employee if adverse action (such as withdrawing an offer of employment) is contemplated. Under California law, applicants or employees must have the option of requesting a copy of the report regardless of action.

Step4: Notice after adverse action: After the employer provides the employee or applicant with copies of the consumer and investigative reports and a reasonable period has elapsed the employer may take an adverse action (such as withdrawing an offer, or discussing or not promoting the applicant or employee) If the employer anticipate taking an adverse action, the employee or applicant must receive an adverse action notice. This notice contains information such as the name address and telephone number of the consumer reporting agency and telephone number of consumer reporting agency; and a statement that the employee / applicant can dispute (with the consumer reporting agency) the report’s accuracy or completeness.

Employee/applicant has various remedies under the applicable laws. For example, if the employer fails to provide the required notices and/or obtain the required consents, then the employee / applicant can sue the employer in federal or state court for damages.

Table Below summarizes suggestions for employers regarding the collection of background information. Top employee background checking providers include Kroll background Screenings Group, Choice point, and First Advantage.

Table Collecting Background Information:

Some suggestions for collecting background information include the following:

1) Check all applicable state laws
2) Review the impact of federal equal employments laws
3) Remember the Federal Fair Credit Reporting Act
4) Do not obtain information that you’re not going to use.
5) Remember that using arrest information will be highly suspect.
6) Avoid blanket policies (such as we hire no one with a record of workers compensation claims).
7) Use information that is specific and job related.
8) Keep information confidential and up to date.
9) Never authorize an unreasonable investigation.
10) Make sure you always get at least two forms of identification from the applicant.
11) Always require applicants to fill out a job applications.
12) Compare the applications to the resume (people tend to be more imaginative on their resumes than on their application forms, here they must certify the information).
13) Particularly for executive candidates include background checks of such things as involvement in lawsuits and of articles about the candidate in local or national newspapers.
14) Separate the tasks of (1) hiring and (2) dong the background check (a recruiter or supervisor anxious to hire someone may cut corners when investigating the candidate’s background).