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Legal Updates & Alerts

Beware of Pitfalls in Vetting Applicants for Employment: Background Checks

April 10, 2007
This week brought good news for the U.S. economy. The unemployment rate is at a five-year low with 180,000 jobs added in the month of March. As employers add new workers, many will struggle with establishing procedures for hiring.

For example, when deciding between job candidates, employers may want more information on their background. An employer may want to check the driving record of an applicant for a trucking position; the criminal background of a prospective bank teller; or the school records of an accounting applicant. Generally, it is a good idea to do some checking around before hiring someone to take a job at your company. However, employers should be aware of the risks associated with checking an applicant's background. To avoid crossing the line, employers should use the following tips:
  • Make sure the background check is related to the job.For example, if you are hiring a childcare worker, you might reasonably check for past criminal convictions. If you are hiring a seasonal farm worker, on the other hand, a criminal background check may not be necessary. Employers should be reasonable and avoid unnecessary digging into the personal life of an applicant. Besides raising privacy issues, even neutrally applied background check policies may have a discriminating impact on hiring minority applicants and therefore be illegal. Tailor policies on checking backgrounds to the job description.
  • Ask the applicant or employee for consent.Securing a written consent from the applicant is the safest course in many situations - and is the only legal course when it comes to checking an applicant's credit history. An employer should clearly explain what it plans to check and how it will gather the information. If an employee refuses to consent, the employer has a reasonable basis to not hire that person.
In addition to these general tips, employers should be mindful of checking the following particular types of information:
  • Credit Reports: Under the Fair Credit Reporting Act, employers must get an employee's written consent before investigating the employee's consumer report. Employers should include a request for consent in their employment applications. If an employer decides not to hire or promote someone based on information in the consumer report, it must provide a copy of the report and notify the applicant of his or her right to challenge the report under the Act. Remember that the term "consumer report" is broadly defined under the Act to include more than you might think - the term encompasses any report prepared by a "consumer reporting agency," such as driving or criminal histories prepared by those companies.
  • School Records: School records are confidential and generally may be accessed only with the express consent of the applicant. Again, include such a consent in your application form.
  • Criminal History: Oregon employers may check the criminal background of applicants for a $10 fee. More information is available at http://www.oregon.gov/OSP/ID/public_records.shtml. For the same price, Washington employers can access criminal background information. More information is available at http://www.wsp.wa.gov/crime/crimhist.htm.
  • Medical Information: An employer may not make a hiring decision based on an employee's disability, as long as the employee can do the job with or without a reasonable accommodation. Thus, employers may not ask applicants to see medical records.
Although it's prudent to check into the background of employment applicants, employers should be reasonable in the scope of investigations and should be mindful of federal and state laws protecting the privacy of applicants. Because laws vary from state to state, it is wise to confer with an employment law attorney before making decisions about background-check procedures.