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.
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
By: Lesley Fair
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.
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.
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.
When vetting a potential new employee the best practice is to conduct a thorough and comprehensive employment background check this background check of course includes the obvious criminal check but it is important to also verify and confirm the employment and education that a candidate presents on his/her resume.
Unfortunately some candidates do embellish, falsify and sadly flat out lie on their resumes thinking that the employment and education will not be verified. This is not only true for domestic employment and education but also for International employment and education.
Many times candidates believe a potential employer will not check their international employment and education. They may give themselves a “promotion” on paper or may claim a higher degree in order to improve their chance of landed a desired job position. When you order an international verification from your Background Screen Company provide them with as much information as you can i.e. Employer Name, Contact Number, Job Title Provided and Dates of Employment. With an International education verification information should be provided such as the candidate’s name while attending the college/university, date of birth, the complete name of the University the candidate attended included the campus location, the degree awarded, major, dates of enrollment, date degree was conferred and a copy of the degree/transcript with a signed consent form as many International Universities require the signed consent of the past student and degree copy.
International employment verifications typically take 3-5 business days but international education verifications may take 5 business days up to 14 business days. For some regions it can be longer. For that reason it is important to arm your Background Check Company with as much information on the candidate and their history as possible at the time of the request. International schools do not keep records as well as schools in the United States and often have to go thru paper records hence for the longer turnaround time as well International schools close for extended periods of time thru Holidays and during the summer which can extend the turnaround time.
Although it may seem burdensome to have your Background Check Company complete international employment and education verification because of the longer turnaround time it is important you know who you are hiring and leaving out this aspect of the background check would be ill advised. A candidate may not have a criminal record but if he/she falsifies information on their resume it can raise red flags for your HR Department as to the character of the candidate. Doing your due diligence is important when hiring an employee and with the global market that due diligence now extends past the border of the United States.
Global Information Network, LLC / www.searchinfo.com
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!
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.
Criminal Background Check Ensures you Employ the service of only Trustworthy, Safe and Capable Employees
A basic criminal background check is a vital tool to utilize in working to make sure that you employ a competent and honest personnel. Regardless of the space on a job application requesting the applicant to state their criminal background, if any, it becomes an unfortunate reality many employees simply just fail to be truthful relating to criminal records. There are many reasons why conducting an employee criminal background check prior to making any hiring decisions is vital. For instance, utilizing a background check might prevent you from employing a potentially dangerous individual that could harm your financial interests as a result of record of criminal theft. In contrast, a employment background check will help ensure you do not hire anyone with a history of leading to real harm to others and therefore allow you to keep a protected operating atmosphere for all of your employees. Fundamentally using a background check helps ensure for you to hire only trustworthy, safe and qualified personnel.
Types of Criminal history checks
When performing a criminal background check you must make sure you conduct the right type criminal background check. Most companies simply conduct a simple criminal background check for the state they reside in. What these employers often don’t know is the fact this type of background check only checks for criminal offenses committed in that particular jurisdiction and fails to search for things like federal criminal charges. This is because of the fact the nation’s government is separated between the federal government and individual state governments. Each have their particular laws each have their own databases listing who committed what crime and when. Realizing this, it is vital you not only conduct a basic criminal background check, but also a federal criminal background check.
Federal Criminal Checks
A federal criminal background check is vital because often time’s federal criminal charges will be the most serious. For example, many drug charges are federal charges. With no information gathered from a federal criminal background check, you could easily employ individuals having a significant drug-related history. Hiring this type of person can lead to such future issues as under-productivity or increased drug use in the workplace. However, many of these potential issues might be prevented by making a federal criminal background check a component of your pre-employment screening repertoire.
Federal Criminal Checks from the Pros
Conducting a federal criminal background check working with a professional criminal background check company is the best and efficient manner where you can perform an federal criminal background check. Using the criminal background check company’s federal criminal background check service, you may be required to enter such information as the individual’s name, address, and social security number into the web-based search engine. The federal criminal background check will then search numerous federal criminal history related databases. Following a complete database search have been finish, the federal criminal background check will let the user determine if any federal criminal history is located. Possessing this information about a prospective employee permits the hiring organization to have a well-informed and less-subjective evaluation of the potential employ.
Global Information Network, LLC / www.searchinfo.com