"What is the law" about Employment Background checks and Work History verification




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What are the legal implications of employment background checks?

Employment Background Checks

The Law and Legal Considerations for Employee and Employer

More and more employers, in many industries, are turning to background investigations and checks to make hiring decisions about potential employees. These checks may encompass several areas including:

  • Criminal Record Check
  • Credit Record Check
  • Employment Verification
  • Character Reference Verification
  • Identity and Address Check
  • Child Abuse Registry Check
  • Sex Offender Registry Check
  • Drug Testing
  • Driving Record Check

It is common for job applicants to be required to provide information to authorities, such as local police and the FBI in order to successfully gain employment. Most would see day care center operators' performing child abuse and sex offender checks as a reasonable course of due diligence, protecting not only children, but also the school itself. Others may feel that there are instances where individuals have been unfairly denied employment for minor infractions or those having occurred many years in the past. It is not unknown for a former employer to provide a poor reference to an employee for some unrelated reason, and who was otherwise deserving of a positive reference.

It is important that both employees and employers understand their rights and responsibilities as stakeholders in a system of checks and balances, whose aim is providing the safest and most equitable environment for all concerned: workers, clients, management and the general public.

Key Background Check Resources

Criminal Record Check

Many businesses have policies in place that prevent those with criminal records from working with them. Volunteer positions, financial positions, security and law enforcement, transportation jobs and jobs that deal with children are just a few examples of occupations that require employees to submit to criminal record checks.

Criminal record checks are usually performed by a local law enforcement agency and there is usually a fee involved, though this is sometimes waived for checks related to a volunteer position.

Different jurisdictions have different legislation that may allow convicted criminals to have past criminal records pardoned or expunged. In many cases, the assistance of lawyer or other legal professional is necessary to have criminal records pardoned or expunged.

Credit Record Check

There are three major credit reporting agencies in the United States:

Each U.S. resident is permitted one free credit record check per year. In some cases these reports may suffice for employers. Other employers may want to perform more thorough investigations and ask employees to sign documents giving permission to make more detailed searches with the above and other agencies.

Those employed in the financial services industry, the military and many other occupations are required to have good credit records and no past bills due. Debts more than 90 days past due are of particular interest to employers in the financial services industry. Some individuals who have faced serious punishment for fraud or securities law violations may face banishment from a given industry for many years.

Employment History Verification

Many employers from just about every industry perform checks to ensure that a job applicant's actual work record matches what they have provided on a resume or job application.

Supervisors, managers and human resources personnel who are screening job applicants may contact previous employers and attempt to verify employment dates and positions. Comparing employment dates with credit record checks and driving record checks is a common way employers attempt to verify the accuracy of candidates' provided information.

By comparing information provided by an employee with a wide array of public databases employers have the ability to verify its accuracy. Job applicants are well advised to provide as detailed and accurate information as possible on resumes and applications. Past tax returns and Internal Revenue Service Form W-2 are good places to check for past employment dates. The IRSand U.S. Social Security Administration both provide services where employees may receive reports that include past employment dates.

Character Reference Verification

It is common for employers to require that potential employees provide the names of character references. These often include former employers, co-workers, volunteer co-ordinators, customers, educators and members of professional organizations. Before using anyone as a reference it is important to contact them and ask for their permission first. Reference letters may also provide further, un-embellish-able, evidence of a former employer's satisfaction with an employee.

Some employers don't check references. They may skip this because they feel that any employee would only provide references that would provide positive reviews and that checking references is a futile endeavor. Others maintain that checking references is an important part of the employment process.

It is important to note that employers are quite limited in the amount of information they are permitted to provide about former employees. When providing a reference, many government departments and large corporations may only acknowledge that an individual was employed between certain dates and in what capacity. It may often be easier to solicit more candid opinions about former employees from small business owners; a practice that small business owners should be cognizant of.

If a former employer is going to give a negative reference they must be very confident in the ability to display to a court at some time in the future that what they present about an employee's character and work is true. This can be a challenging endeavor. More than one former employer has found themselves the target of slander and libel actions for making disparaging comments in regard to former employees.

Identity and Address Check

The FBI maintains an Identity History Summary Checks service that is for individuals who need detailed checks for overseas employment and other reasons. U.S. residents are advised to contact their local or state law enforcement agency for identity and address checks.

With the rise in identity theft and related crime, many employers perform checks to ensure that people applying for jobs are actually who they say they are. A common ploy by those with nefarious intentions is to seek employment using an assumed identity. This gives identity theft perpetrators access to a wide range of privileged information and benefits, which are then easily exploited.

Driving Record Check

Many people are required to operate motor vehicles when carrying out their day to day duties: truck drivers, taxi drivers, construction workers, firefighters and utility workers are just a few examples.

Many employers of those who operate vehicles insist that drivers have clean driving abstracts. Most commercial insurance companies require this as well. This means that the driver has not been cited for any infractions of motor vehicle law for the length of the report. These driving records are available from state motor vehicle departments, usually for a fee.

Drug Testing

Also common for those who operate motor vehicles and just about any other type of heavy equipment is drug testing. Drug testing is common for employees hoping to gain work in many industries. The U.S. Department of Labour maintains a Drug-Free Workplace Policy Builder that employers may use to ensure their drug testing activities are lawful. Many employees are not required to submit to drug testing in the United States.

Child Abuse and Sex Offender Registry Check

Anyone who comes into contact with children: teachers, day care center workers, camp counselors, lifeguards and swimming instructors are examples of occupations where a child abuse and sex offender registry check is usually required.

The U.S. Department of Justice maintains the National Sex Offender Public Website where anyone may perform searches into the names and locations of sex offenders located throughout the country.

Improper, Illegal and Inaccurate Background Checks

Candidate employees in the United States are not required to submit to drug testing for many occupations. Likewise, a driving infraction should have no bearing on the decision to hire in many occupations. In spite of this, many employers attempt to gain more information about potential employees than they are lawfully permitted access to. In many instances, employees may be submitting to testing and checks and providing personal information that an employer is not allowed to lawfully request or even possess. Knowing rights and responsibilities is essential in fair and equitable workplace background testing.

The Fair Credit Reporting Act

The U.S. Consumer Financial Protection Bureau has posted a summary of rights under the Fair Credit Reporting Act.

These rights include:

  • If information contained in a credit file is used against a potential employee, say in denying them employment, the reason and the name of the reporting agency must be provided to the candidate.
  • Individuals have the right to know what is in their credit file.
  • Individuals have the right to know their credit score.
  • Individuals have the right to dispute inaccurate or incomplete information.
  • Reporting agencies must correct incorrect records.
  • Reporting agencies may not report outdated information; generally more than 10 years old.
  • Access to credit reports is limited to potential employers and creditors.
  • Employers require employee's consent to access their credit report.

It may seem obvious, but the accuracy of records used in background checks is essential. An incorrect report could easily result in an otherwise qualified job applicant being wrongly denied a position. Those who feel they have been denied a position based on decisions based on inaccurate reports are encouraged to contact a legal professional as soon as possible after the incident occurred. It is important to document and ask for written verification of as many aspects of the employment screening process as possible in order to successfully demonstrate than one has been unfairly denied a position. It can be a daunting process to complete successfully. However, it is not impossible.

Another Person's Information on Your File

Sometimes law enforcement agencies and other authorities make mistakes with spelling. In some instances people share exactly the same name. Whatever the cause, there is no reason that inaccurate information should ever been included on anyone's background check of any kind. Those who become aware of inaccurate criminal record checks should contact the issuing agency for clarification. If this does not produce desired results the next step is to contact an employment law professional or the U.S. Equal Employment Opportunity Commission.

Outdated Information on Your File

The statute of limitations for most offenses is seven years. Negative information concerning criminal convictions, bankruptcies or other credit information is considered irrelevant after this time. Job applicants who find that they have been denied employment on the basis of outdated criminal or financial information are advised to contact the agency responsible for issuing the erroneous information. If this is unsuccessful the next step would be to contact an employment lawyer or the EEOC.

Duplicate Information

Duplicate information on a financial report or criminal report can be disastrous for job applicants. Any information contained in any type of background check that is disparaging to employees must be accurate. If debts or criminal charges have been duplicated, resulting in an employee being denied a position that they were otherwise qualified for, consulting a legal professional or the EEOC is strongly advised.

Where to Go For Help

The EEOC has information about background checks for both employers and employees. Employees who feel that have been unfairly treated in an employment hiring decision may contact the EEOC at their website: www.eeoc.gov and by telephone at (800)669-4000.

The EEOC also has information related to the following:

The Federal Trade Commission also has help available for employees whose employers have acquired a background check without their consent at their website: www.ftc.gov and by telephone at (877) 382-4357.

The FTC also has information related to the following:

It is essential that information contained in any report taken into consideration when making employment decisions is accurate and complete. Job seekers have a right to know that they are being treated in a fair and impartial manner. Those who believe they have been unfairly treated on the basis of an inaccurate or illegal background check have several avenues of recourse.

Documenting communication with potential employers is vital to being able to prove unfair treatment at a later date. Save e-mails, voice mails, letters, reports and all information related to the employment process with unfair employers. These items may provide confirmation to courts or other regulatory agencies at a later date of any alleged impropriety.

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