ROBIN PAGGI: How to do legal background checks on job applicants
| Friday, Jul 15 2011 12:00 PM
Last Updated Friday, Jul 15 2011 12:46 PM
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Robin Paggi
Screening, checking and testing job applicants can lead to better hires. In this second installment of a three-part series, today's article focuses on the variety of ways employers may legally conduct background checks on job applicants including contacting previous employers, credit checks and criminal record searches.
Employers who consider contacting an applicant's previous employers a waste of time should know that failure to do so could lead to a charge of negligent hiring. According to www.definitionsuslegal.com, "Negligent hiring is a claim made by an injured party against an employer based on the theory that the employer knew or should have known about the employee's background which, if known, indicates a dangerous or untrustworthy character."
Even if an applicant's previous employer does not disclose any information about the applicant, being able to demonstrate that a check was made on the applicant's work history might prevent a negligent hiring lawsuit.
Before calling an applicant's previous employers, written authorization to do so should be obtained from the applicant. Additionally, those making the calls should be trained on appropriate questions to ask. For example, it is permissible to ask whether an applicant had a good attendance record. However, it is not permissible to inquire as to why an applicant had frequent absences.
Many previous employers are reluctant to answer any questions other than dates of employment and position held. Those bits of information are still valuable because they can be compared to the information the applicant supplied to determine whether there are any inconsistencies. Also, those who call previous employers may remind them that California Civil Code Section 47 (c) allows a current or former employer, or the employer's agent, to answer whether the employer would rehire a current or former employee.
Checking an applicant's credit is also allowable as part of a background check; however, employers should be cautious when doing so. An Equal Employment Opportunity Commission advisory letter issued in 2010 stated that an employer's use of credit checks to screen job applicants could be illegal if it leads to a disproportionate exclusion of minorities or other protected groups. Additionally, AB 22 (which passed in the Assembly in May, but has not yet passed in the Senate) bans the use of pre-employment credit checks for many private employers except for managerial positions where a credit check would be substantially job-related.
Employment attorney David Blaine suggests that employers wanting to conduct credit checks should identify the intended purpose/value of the check; determine whether the credit information has a nexus to the applicant's ability to perform the job duties; and comply with all federal and state laws regarding the authorizations, notices and disclosures that credit checks require.
Employers who check criminal records should know that, according to the National Employment Law Project, "After years of dormancy, the basic civil rights and consumer protection laws restricting the use of criminal records are catching a second wind." At least five major civil rights lawsuits against large employers were filed in 2010 challenging the use of criminal background checks. According to www.shrm.org, these employers were sued for rejecting applicants and terminating employees with criminal records (even when the criminal history had no relationship to the job), and having blanket policies prohibiting people from working if they had felony convictions or had been in jail. Employers conducting criminal records searches are recommended to:
* obtain authorization from the applicant;
* research at least the last seven years;
* consider the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job held or sought;
* not make any decisions based on misdemeanor marijuana convictions that are more than two years old; and
* hire a professional to conduct the search.
Checking the employment, credit and criminal histories of job applicants is the second step in making the decision whether to hire or not. Employers are also allowed to have applicants take a variety of tests, which will be the topic of the final installment of this series.
Robin Paggi is a Certified Human Resources Professional with KDG Human Resource Solutions, a division of the Klein, DeNatale, Goldner law firm. These are her opinions, not necessarily The Californian's.
