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August 19, 2013
How To

Make sure your policy on employee background checks is sound

A background check can provide employers with valuable information about an applicant's qualifications and fit within an organization. However, state and federal laws can create traps for the unwary. Before conducting a background check, you should consider the following:

1. Understand the law

If you hire an outside agency to conduct background checks, you must comply with the federal Fair Credit Reporting Act and similar state laws, which regulate the use of "consumer reports." Consumer reports are not simply credit reports. Instead, consumer reports include any outside agency communications that contain information bearing on a person's character, general reputation, personal characteristics or mode of living. This can include an applicant's driving records, criminal history, credit history and possibly his or her social media activity. Federal and state laws also have strict notice and written authorization requirements. These laws require employers to notify an applicant before conducting a background check and before taking adverse action based upon the results. Failure to follow these requirements can result in civil and criminal penalties (not to mention litigation). Even when conducting a background check in-house, you should consider satisfying these notice and consent requirements as precautionary measures.

2. Consider timing

Background checks can reveal information that you are not entitled to (and cannot consider) during the application process, such as age, sexual orientation, disability, religion, race or national origin. Obtaining this information in advance of a conditional offer might lead an applicant to believe that you impermissibly based an adverse decision on this information. When extending an offer, make clear that employment is conditioned upon a satisfactory background check.

3. Limit criminal checks

You must limit criminal background checks to convictions. Before taking any action in response to a criminal background check, you should conduct an individualized assessment of the applicant. This includes providing the applicant with an opportunity to explain why he or she should not be excluded from employment. You must then consider whether the applicant's additional information demonstrates that his or her past criminal conduct is not job related or whether there are sufficient mitigating circumstances. In essence, a criminal conviction should not be an automatic bar to employment.

4. Think before searching social media

Employers often search an applicant's social media profile as part of a background check. Although this type of background check has obvious appeal, there is a risk that the search will reveal information that you are not permitted to obtain or consider, such as an applicant's membership in a protected class. You should think about whether the information you glean from a social media search outweighs the risk. Additionally, you should not request an applicant's social media account password or "shoulder surf." This last point is enough of an issue that Maine, like other states, introduced legislation (although it has not yet passed) to prohibit such behavior.

5. Use background checks in a consistent manner

Federal and state laws prohibit employers from discriminating against job applicants based upon race, color, national origin, religion, sex, sexual orientation, disability, pregnancy and age. Thus, consistency in application of your background check policy is imperative.

6. Stay well-informed

Background check laws are evolving, especially in the areas of credit information and social media. It is important that your policies keep up.

Dawn Harmon is a director and shareholder at Perkins Thompson and Joseph Talbot is an associate. Both attorneys are members of the firm's employment law practice group. You can reach them at perkinsthompson.com.

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