Pre-Employment Inquiries and Arrest & Conviction

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There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.

This is also true for a conviction.

Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer’s use of conviction data in making an employment decision.

In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.

The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant’s written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Certain other disclosures are required upon the employee’s request and prior to taking any adverse action based on the reports obtained.

Did you know their is a federal rule for measures to dispose of sensitive information derived from consumer reports?

07/28/2015 Post

FACTA Disposal Rule
This federal rule will require businesses and individuals to take appropriate measures to dispose of sensitive information derived from consumer reports. Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule, a part of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), which calls for the proper disposal of information in consumer reports and records to protect against “unauthorized access to or use of the information.” READ MORE

FTC, EEOC offer FCRA 411

By: Lesley Fair

When someone mentions the FTC, the EEOC, and the FCRA in the same sentence, it may sound like a ladle of alphabet soup.  What’s really being served up is a new joint publication by the Federal Trade Commission and the Equal Employment Opportunity Commission that talks about how the Fair Credit Reporting Act and the mandate to comply with anti-discrimination laws intersect when employers use background checks in personnel decisions.

The new brochure, Background Checks: What Employers Need to Know, offers nuts-and-bolts guidance from the two agencies when employers consider the background of applicants and employees in hiring, retention, promotion, and reassignment.  From the FTC’s perspective, if you run background checks through a company in the business of compiling background info, compliance with the FCRA is key.  And as the EEOC reminds employers, any time you use an applicant’s or employee’s background information to make an employment decision — regardless of how you got that information — you must comply with federal laws that protect people from discrimination.

Background Checks: What Employers Need to Know is a to-the-point read with links to free resources to streamline your compliance efforts.  Read it online or print the .pdf for your HR staff and others involved in personnel decisions.  While you’re there, bookmark the FTC’s Credit Reporting page and special portal for Human Resources professionals.

The FTC and EEOC also have teamed up to issue a new brochure, Background Checks: What Job Applicants and Employees Should Know, for people on the other side of the desk.

DISCLAIMER:
Global Information Network, LLC  articles are provided for informational purposes only. They are not intended to be comprehensive, and are not a substitute for and should not be construed as legal advice. Global Information Network, LLC  does not warrant any statements in the articles. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.

Information for Employers on Amendment to Minnesota Statute 364

Minnesota Expands “Ban the Box” to Private Employers In May, Governor Mark Dayton signed a criminal background check bill offering job candidates with an arrest or conviction more opportunities to be evaluated on their skills and experience when applying for positions with private employers starting January, 2014. The new law requires private employers to wait until a job applicant has been selected for an interview or a conditional offer of employment has been extended before asking the applicant about their criminal record or conducting a criminal background record check. The elimination of the question with a check box asking about criminal background on initial job applications have been commonly referred to as “Ban the Box.” “Ban the Box” has applied to public employers in Minnesota since 2009. Nationally, there are 92 million Americans with either an arrest or conviction on their record. This law offers the vast majority of individuals with a non-violent criminal record a second chance at an opportunity for employment to better their lives. Employers may still exclude applicants if required by law not to consider candidates who have been convicted of a crime, thus, existing laws will continue to protect vulnerable adults and children from people with violent or sexual criminal histories. Additionally, employers may still exclude applicants if a crime is relevant to the position’s job duties. The new law outlines potential penalties for employers found in violation of the law. If the Human Rights Commissioner finds that a violation has occurred, the Commissioner may impose penalties.

Hiring Trend: Hiring From Within

Article Date: 11/12/2013

A new corporate trend in hiring.  Companies are turning to moving employees around instead of increasing their workforce.  This is a time and money saving option that is becoming very popular in today’s economy.  With companies trying to figure out how to cut the fat and reduce overhead employees positions are being combined leaving room to eliminate others.  With minimal involvement from the HR department and reduced training time this is a win for the company.  Many companies will include an employment background re-check as part of the move ensuring there have been no changes in the employee’s background history.  Global Information Network, LLC offers its clients a recheck package checking only the needed reports such as criminal background check, driving record, employment credit report and sex offender checks.  Re-check packages come with a reduced price saving even more to the bottom line compared to a new hire background check which many times will include previous employers and education verification’s.

With companies looking to downsize the option of hiring from within is taking hold of corporate America and internationally.  Global Information Network, LLC international division has seen an increase of this practice over the last year.  Until consumer growth and corporate confidence becomes a steady reality Global Information Network believes we will see more of this economically smart trend.

Employment Background Checks and Social Media

Article Date: 10/05/2012

Employment background checks and social media check yes or no.  In today’s social media world many companies are including a social media check as part of the employment background check.  Some sources are saying to stay away from this kind of background check as it can open the company up to lawsuits however other sources are saying if done correctly go ahead.

The first thing a company should is check their state employment laws to make sure there are no laws on the books to stop them from doing this type employment background check.  For example Maryland Code, Labor and Employment §3-712, effective October 1, 2012. Maryland became the first state to pass a law banning employers from asking applicants for their social media password.

The second State is Illinois, Public Act 097-0875 following is a portion of the act.

b)(1) It shall be unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.

The downside to using information from the Internet is you do not know if the information is true and correct.  Other issues are you can find out information you do not want such as race, gender and age; that information can be user against the company if they do not hire that individual.  It could be said that you did not hire me due to my age, disability or other factors

If your company decides to include Internet and social media information in your employment background checks the first thing that should be done is to discuss it with your legal counsel.  The people directly involved in the hiring process should not be involved in the research on the Internet.  The hiring decision makers should only review the redacted report that does not include such information that might be used against the company.

DISCLAIMER:

Global Information Network, LLC, articles are provided for informational purposes only. They are not intended to be comprehensive, and are not a substitute for and should not be construed as legal advice. Global Information Network, LLC, does not warrant any statements in the articles. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.

As a User You Know the Federal Employment law but What About State Employment Law?

ARTICLE DATE: 10/03/2012

As an employer you are up to date with the Fair Credit Reporting Act (FCRA) employment law that is provided by the Federal Trade Commission (FTC).  But are you current with State Employment Law?  There are currently 28 States that have employment Laws that affect the User of Employment Background Checks.  Individual State Statutes and Codes should be discussed with your legal counsel to confirm you are compliant.  You can request a web link to the Fair Credit Reporting Act (FCRA) and individual State Statutes and Codes from your employment background screening company.

State Employment laws will cover reports such as criminal background checks, employment credit reports, employment and education verifications and more.  An Example of State Labor and Employment law is as follows.

Connecticut CT – Users – Use of Credit Report – The following are positions where a credit report is deemed substantially job related:–1) Any position with a state or federally charted financial institution; 2) A managerial position which involves the direction or control of a unit, division or agency of a business; 3) An employee will have access to personal or financial information of customers, employees or the employer if that information is beyond that presented in a typical retail transaction; 4) An employee has authority to issue payments, transfer money or enter into contracts on behalf of employer; 5) An employee has an expense account, company debit or credit card; 6) An employee has access to confidential/proprietary business information or trade secrets; 7) A credit report is required by law; 8) The employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of law related to employee’s employment; 9) Catch all – the employer has a bona fide purpose for requesting or using information in the credit report that is substantially job related and is disclosed in writing to the employee or applicant.

Other examples of Labor and Employment law:

CT – Users – Use of sealed, expunged or erased records.

MA – Users – Maintenance of records.

NY – Users – Use of arrest record with no conviction.

One of the current Statutes and Code is the use of information found at a social network sites.  Maryland became the first state to pass a law banning employers from asking applicants for their social media password.

Making sure your employment hiring company policy is up to date with State and Federal laws, Statutes and Codes is a must with today’s HR department.  Call your legal counsel today!

DISCLAIMER:

Global Information Network, LLC, articles are provided for informational purposes only. They are not intended to be comprehensive, and are not a substitute for and should not be construed as legal advice. Global Information Network, LLC, does not warrant any statements in the articles. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.