Employers and Background Checks

2.0 Good Mugshot

No employer wants trouble.  But that doesn’t mean you can screen out any applicant with an arrest or conviction.  This blog will show you the federal laws to watch out for and which ones won’t apply if you do the background check yourself.  I will also point to links where you can read up on your state law requirements.

Keep in mind that you need to follow both federal and state law.  And there’s no uniformity between the states.  What’s fine in Arkansas could be illegal in Arizona.  So read your state’s law.

Federal Laws On Employment Background Checks
When it comes to the workplace, there are two federal laws to be mindful of when doing background checks.  The first is the Fair Credit Reporting Act (FCRA).  The Fair Credit Reporting Act is generally understood to refer to credit reports.  But it also applies to Background Reports and Consumer Reports.  The latter is most often used by prospective landlords and contains information about a person’s credit characteristics, character,  general reputation, and eviction records.  It’s a catch all phrase that includes credit reports.

Under the FCRA, you must get a person’s consent before ordering either of these.  If you refuse to rent, hire or retain them, they must be given a copy of this report and the reasons for your decision.

The second set of laws are those from Title VII of the Civil Rights Act of 1964.  These are the laws enforced by the Equal Employment Opportunity Commission (EEOC) to prevent discrimination based on race, color, sex, religion, disability  and national origin.

When it comes to criminal records, the EEOC’s main concern is that there’s no discrimination based on color, race or national origin.  Previously they’ve noted “an employer who adopts a blanket policy of excluding all applicants with a criminal record could screen out disproportionate numbers of African Americans and Latinos, which could in turn constitute illegal discrimination.”

The good news is that Title VII does not apply to employers with less than 15 employees.  So small employers can ignore The EEOC Guidelines on Arrests and Convictions.

Counting how many employees you have is another matter.  Sometimes part-time employees don’t count.  Sometimes they do.   It all depends on how long they’ve worked for you.  For more, you’ll want to read up on How To Count The Number of Employees An Employer Has.

What If I Do My Own Background Checks?
The Fair Credit Reporting Act covers only certain types of background checks i.e. those you pay for or get through data brokers or through credit/criminal/consumer reports.

It does not cover you doing your own research using free public records.  However, the EEOC rules against employment discrimination (especially against race or color) restrict how you can use the info regardless of how you got it.  Key is if you have over 14 employees.  (Independent contractors don’t count as they’re not employees.)

State Laws On Background Checks
So you have only 5 employees and you’ll do your own background checks, all for free.  Great.  The Federal laws above can’t touch you.  You’re exempt from the FCRA because you’re not ordering a background or consumer report.  Likewise, the EEOC can’t touch you because Title VII applies only to larger employers.

So are you scott-free?  Not quite.  Your state may impose additional legal restrictions on employee background checks.  State laws vary dramatically and can offer additional safeguards to prevent discrimination.

Nor does it always depend on the size of your company or how you got the information.  Some states limit what you can ask, when you can ask it or what you can do with the information regardless of how it was obtained.

For example, under New York law,  it’s illegal for a company with 10 or more employees to exclude all applicants with a criminal conviction.  Rather the employer must show that hiring the applicant would pose an unreasonable risk to property or to public or individual safety, or the conviction bears a direct relationship to the job.

In Georgia,  the law is totally different.  There is no restriction on the size of the company.  And in some cases, first offense or parole records cannot be used negatively in the hiring process.

For more, see Background Check Laws & Regulations For Private Employers

Related Links
State Laws on Use of Arrests and Convictions in Employment
Free Criminal Records Including Arrest Records & Convictions
An Employment Law Tightrope: Criminal Background Checks

 

 

 

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