Employee Background Check Laws
The laws regulating background checks for a potential employee can be nerve wracking and confusing for an employer. For a prospective employee, having a criminal record may cast doubt as to what kind of employment opportunities exist and how background checks affect the job search process. Some sensitive jobs, such those in health care, child care and care of the elderly, require by law a background check. There are, however, limitations as to how far back in time and what kind of information a consumer reporting agency can legally check.
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Function
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The federal Fair Credit Reporting Act (FCRA) governs how background investigations and consumer reports are to be conducted. The FCRA exists to ensure that background checks are conducted in a fair and accurate manner. he FCRA also delineates what rights employers and employees have. Employers have the right to verify such information as credit history, criminal records, driving records, education and past employment. There are, however, situations such as expungement of a criminal history or a medical history that can remain confidential.
FCRA Limitations
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There are some technicalities in the FCRA that limit employee protection regarding background checks. An employer conducting an investigation by using public records is not subject to FCRA's regulations. Information on convictions, parole and probation are available to the public. Employers are legally obligated to follow the FCRA if a third party is used to obtain background information. A background check on a current employee does not fall under FCRA if conducted privately by the employer. A background check can be conducted at any point during employment and for promotions, retention or transfers.
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Criminal Convictions
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The federal Equal Employment Opportunity Commission (EEOC) has ruled that a person cannot be denied employment based on a criminal record alone. According to the EEOC, a potential employer must consider the nature and gravity of an applicant's offense(s), the time that has passed since her conviction or completion of sentence, as well as the nature of the job being sought. Following EEOC regulations is required in any hiring situation whether or not a background check was conducted by an employer. A conviction may show up on a background check or from a simple inquiry through courthouse records. An expungement, sealing of the records, or deferred adjudication may not show up in a public check. This does not prevent the employer for asking for such information on a job application. Job applicants should verify with the county clerk how their criminal conviction history shows up in public record before divulging information that may not appear during a background check.
Arrest Records
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The FCRA does allow for third-party consumer reporting companies to report arrest records up to seven years from the point of entry into the criminal justice system. Any arrest record older than seven years can not be reported by a third-party company. Under the FCRA, these restrictions can be ignored by employers for jobs with an annual salary of $75,000 or more a year (FCRA §605(b)(3)). This does not prevent an employer from obtaining this public information himself and thus not being subject to FCRA laws in doing so.
Employee Right To Know
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Whether seeking employment or are already employed, employees have the right to know if a background check is being conducted by an third-party company and whether an employer is legally required to inform an employee of such action. If the employer is conducting a private background check, she is not subject to the FCRA and does not have to inform an employee of any investigation. An employer must obtain employee authorization to perform a background check and this authorization must be on a separate page from a job application.
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References
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