Problems Posed By Employee Background Checks

Employment background checks, including criminal history reports, are becoming all too common and have even been used in relation to entry level or lower level job openings.  Employers may wish to conduct background checks for vetting employees and avoiding allegations of negligent hiring where the employee has a criminal conviction.  On the other hand, Employers often make mistakes in complying with a complex set of Federal, State and even Local laws in conducting such checks.  As a general rule, for the reasons discussed below, employers should carefully follow procedural requirements in conducting background checks.  When an employer uses negative information contained in a background or credit check, the employer should carefully consider if the criminal history has a sufficient connection to the nature of the job or job functions. 

From a procedural perspective, Federal laws such as the Fair Credit Reporting Act (“FCRA”), 16 U.S.C. §1681 et seq., govern how an employer may obtain a background check.  Among other things, Employers are cautioned to disclose that a candidate is subject to a background check and obtain specific written authorization from the employee prior to conducting the background check.   FCRA also has specific procedures if the employer wishes to take adverse employment action based upon a background check. 

Furthermore, the Equal Employment Opportunity Commission (“EEOC”) has opined that the use of criminal background checks to eliminate job candidates statistically affects African-Americans more than other racial groups and the use in a specific case could give rise to a discrimination action.  Thus, the EEOC recommends that information used in a background check be related to job functions. 

Moreover, there are often State laws that govern the use of criminal histories in relation to excluding candidates from consideration.  For example, the Pennsylvania Criminal History Record Information Act bars employers from denying employment based on a criminal conviction unless:  1. the conviction was for a felony or misdemeanor; 2. the crime has a sufficient connection to the applicant’s suitability for the position, and 3. the applicant is given written notice of the decision not to hire based on the conviction.   Plaintiffs have used the Pennsylvania Criminal History Record as a basis for a claim of adverse action in violation of Pennsylvania public policy. 

Additionally, local Ordinances can govern the use of background checks for employment purposes.  For instance, in July of 2011, Philadelphia passed the Fair Criminal Record Screening Standards Ordinance which prohibits inquiries into a candidate’s criminal history in the first interview.  It applies to companies operating in Philadelphia with ten (10) or more employees. 

Thus, if employers are considering adding a criminal or credit background check to screening criteria, employers should consult with experienced counsel.   If employers already have a criminal background check as a part of the hiring procedures, it may be a good idea to update the policy to make sure it is in compliance with Federal, State and Local laws.  In addition, if you are an employee and have suffered adverse employment action based on a criminal background check, you may want to consult with counsel to discuss the circumstances. 

Written by

Brendan D. Hennessy, Esquire is an experienced attorney and provides an assortment of legal services, focusing in the area of Employment Law.

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