Background Screening

Employers are increasingly turning to background screenings of job applicants as a way of minimizing legal and financial exposure. Concerns about workplace violence, negligent-hiring lawsuits, wrongful termination and other problems are leading many employers to be more careful about who is hired in the first place.

For applicants, however, background screening can create an uneasy feeling that they are mistrusted from the start or that Big Brother is watching.

The fact is, however, that background screenings of job applicants benefit employers and employees alike. And with the recent changes in the Federal Fair Credit Reporting Act, job applicants have a great deal of legal protection.

For applicants, the advantages of working for a company that requires screening is that efforts have been made to ensure that co-workers have the qualifications and credentials they say they have. In addition, employers typically screen for criminal records, especially those involving violence or dishonesty.

For the employer, screening saves the time and money wasted in recruiting, hiring and training the wrong candidates and eliminates potential difficulties in the work force.

Of course, a background screening is not a full-fledged FBI-type investigation. Screening companies are typically looking for red flags indicating potential problems or resumes that are not factual or omit important information.

Job applicants have recently been afforded substantial new legal rights to ensure the accuracy and fairness of the process. Congress amended the Fair Credit Reporting Act effective last September 30 to allow consumers to know exactly what is going on and to assert their rights in case of errors or mistakes. An applicant’s rights are listed in detail on the Federal Trade Commission Web site at www.ftc.gov.

Under the FCRA, when an employers uses a background screening company to prepare a report, several steps must occur:

The employer must clearly disclose to the applicant in a separate document that a report is being prepared. The disclosure can no longer be buried in an application in the fine print.

A signed release is required before checking records such as criminal convictions or pending criminal cases, driving records, credit reports or educational credentials.

An additional notice is required when a background firm checks references, such as asking previous employers about job performance.

If an employer intends to deny employment based upon information in the report, the job applicant must receive a copy of the report and a notice of legal rights.

If an applicant believes the information is wrong, the applicant can inform the screening agency, which must remove or correct inaccurate or unverified information, usually within 30 days.

Applicants have the right to inspect their files.
The law is designed to strike a balance between an employer’s need to exercise due diligence in hiring and an applicant’s right of accuracy and privacy. For applicants who are genuinely the victims of mistaken identity or bureaucratic errors, there is an opportunity to know what is being said about them and to fix the record so they are not denied opportunities unfairly.

For a job applicant, honesty is always the best policy. Negative information honestly disclosed in an interview with an explanation may well have no effect. However, if the employer discovers it through a third party, then the lack of honesty may be the reason for not getting the position.

Even a criminal conviction cannot legally automatically disqualify a person from employment, without considering the nature of the offense, when it occurred, what the applicant has done since and whether it is related to job performance.

©2001 by Lester S. Rosen