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How to Ensure Your Background Check is Legal

Christopher E Miller

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Even though employment background checks are critical, employers shouldn't rush in without carefully planning their procedures. A proper background check involves an array of regulations that govern what you - as an employer - can and cannot do. There are laws that dictate the circumstances for which you can acquire different types of information about your job candidates. If you fail to comply with these laws, your company can be held liable and be vulnerable to fines or a lawsuit. Below, I'll explain how to make sure your background check is legal.

Background Check Information And The FCRA

The FCRA (Fair Credit Reporting Act) sets the limitations under which background investigations can be conducted. However, it's important to note that the limitations only apply to consumer reporting agencies. If an employer conducts an investigation in-house, the FCRA isn't applicable. An exception to this is in California where state law gives job applicants certain rights if the employer conducts its own employment background checks.

When a consumer reporting agency is used, the FCRA specifies that the job-seeker must provide written consent for an employer to access credit history and other information. If the employer decides to not hire the job-seeker because of something on the consumer report, the employer is legally required to notify the applicant.

The information found on this consumer report is limited by rules established by the FCRA. For example, the report cannot include bankruptcies that are over 10 years old. Nor can the report include civil judgments and arrest records after 7 years have passed. However, the FCRA does allow reporting of criminal convictions without a time limit.

Using Employee Polygraphs

Under most circumstances, employers are not allowed to administer polygraph tests on prospective hires. The EPPA (Employee Polygraph Protection Act) allows such tests, but only under rigid conditions. For example, if a job candidate has applied for a position that will allow her exposure to contract work for the government, you may be allowed (and in some cases, even required) to administer a polygraph test.

Background Check Procedures And Getting Permission

Your company should have a well-thought and clearly-communicated employee screening policy in place. The policy should explain the actions involved in a background check. These actions should include when certain types of checks are conducted, the positions for which checks are done and the types of personal data about which you'll inquire. Having a clear background check policy helps to maintain the balance between your need for the applicant's personal information and their right to privacy.

Before you conduct a background check, make certain that the job candidate has given her permission to do so. This is typically done by having the applicant sign a consent form. Her signature acts as legal authorization for you to begin the investigation.

Conducting an exhaustive background check is one of the most important hiring practices you can implement for your company. But, you need to comply with existing laws. If your company doesn't have the resources available, consider hiring an employee screening service to manage the investigation for you. Whatever your choice, use the tips above to ensure your background checking procedures are legal and above reproach.

Chris Miller, President of FYI Screening, Inc. , helps employers evaluate and improve their employee screening programs to make their jobs easier, prevent theft and loss, and create a safer workplace. Read the Top 4 Things You Need To Know About Employee Screening.


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