Go with perspective
Blogs & Publications

Employee Background Checks on the Rise: Proceed With Caution

In the aftermath of the tragic events of September 11, 2001, employers, experiencing heightened safety concerns for their employees – – and their businesses – – have flooded investigative companies with requests for employee background checks. A simple Internet search shows a slew of companies ready to provide – – at cyber speed and low cost – – details of employees’ private lives, ranging from their credit status, to their criminal records, and even their neighbors’ opinions about them.

Whether employers engage in background checks themselves or hire a background check company, employers should keep in mind that permissible pre-employment inquiries vary by state. Inadvertent violations of credit and anti-discrimination laws can expose a company (and in certain cases, individual managers, executives, and/or officers) to substantial liability.

Accordingly, employers should proceed with caution in undertaking background checks – – and, more broadly, with respect to all pre-employment inquiries. If using a background check company, employers should work only with credible, insured companies. In any event, employers must understand the myriad of laws that govern the type of information employers can solicit regarding job candidates. Below is a summary of pertinent federal and state laws to help Massachusetts employers achieve this goal.

1. ANTI-DISCRIMINATION LAWS APPLY TO PRE-EMPLOYMENT INQUIRIES

Remember, anti-discrimination laws are broad in scope. (See “Avoiding the Courthouse: A Step By Step Program for Complying with Basic Employment Laws“). Both federal and state anti-discrimination laws make it unlawful for employers to make employment decisions based upon any one of an increasingly broad range of prohibited categories, which differ from state-to-state but which typically include:

race gender
color sexual orientation
religion ancestry
national origin disability
age veterans status

(“Protected Class” or “Protected Classes”).

Significantly, employers’ anti-discrimination obligations begin even before the time of hire, as both federal and state laws prohibit discrimination in employment in all phases of employment, including interviewing and hiring.

2. PRE-EMPLOYMENT INQUIRIES CAN NOT ELICIT – – EVEN INDIRECTLY – – WHETHER THE APPLICANT BELONGS TO A PROTECTED CLASS

Inquiries that directly ask whether a person is part of a Protected Class are not the only types of questions that violate anti-discrimination laws. Rather, questions that indirectly – – even innocently – – elicit whether an applicant is part of a Protected Class are also considered discriminatory. As the Massachusetts Commission Against Discrimination (“MCAD”) has explained:

An employer may NOT make inquiries, the response to which would likely disclose the applicant’s protected class status.

The MCAD has provided specific examples of what can NOT be asked prior to employment because these inquiries elicit responses that may indicate that the applicant is part of a Protected Class. The list of “do not ask” questions, provided by way of example only (remember, these are not exhaustive), include:

(1) inquiries into date of birth or age (okay to ask if over 18);

(2) inquiries into whether the applicant has a mental or physical disability, is an alcoholic or has a drug addition, or has AIDS, including an inquiry regarding the applicant’s workers’ compensation history;

(3) inquiries into the birthplace of the applicant, the applicant’s parents, spouse or close relatives; the national origin, ancestry, or ethnicity of the applicant; an applicant’s birth place if outside of the U.S.; inquiry into whether the applicant, the applicant’s parents, or spouse are nationalized or native-born citizens of the U.S.;

(4) inquiries into the race or color of the applicant;

(5) inquiries into the religious denomination or practices of an applicant, the applicant’s religious obligations, or what religious holidays the applicant observes;

(6) inquiries into maiden name, inquiries to only one sex concerning marital status, inquiries concerning whether the applicant has children, plans to do so, or has child care arrangements;

(7) inquiries into the applicant’s sexuality.

Employers are also prohibited from asking for a photograph to accompany the job candidate’s application. Further, inquiries about the candidate’s education that are designed to elicit the candidate’s age, or inquiries about his or her membership in organizations, the names or nature of which might disclose the candidate’s membership in a Protected Class, are also prohibited.

So what can employers ask? Lots – – so long as the questions are directlyrelated to the applicant’s ability to perform the job for which he or she is applying. Thus, where the inquiry is related to determining whether the applicant is qualified to perform the essential functions of the job, an employer’s questions are permissible. To help ensure that the line of questioning relates to the job at issue, employers should take care to create an accurate job description, and interviewers should tailor their questions to those responsibilities.

Employers should also be aware that they are permitted – – indeed, required by law – – to ask for proof of eligibility to work in the United States.

3. ONLY LIMITED QUESTIONS CONCERNING CRIMINAL HISTORY CAN BE POSED DIRECTLY TO APPLICANTS

Subject to certain written notice requirements, employers may directly ask an applicant about any felony convictions – – regardless of the type of felony or when the conviction took place. Further, employers may directly inquire of an applicant as to whether, in the 5 years immediately preceding his or her employment application, he or she has been convicted of, or completed a period of incarceration for, a misdemeanor. However, employers must exclude the following misdemeanors from this inquiry, if related to a first conviction:

  • drunkenness
  • simple assault
  • affray (brawling)
  • speeding
  • disturbing the peace
  • minor traffic violations (this includes moving traffic violations, except reckless driving, driving to endanger, and vehicular homicide)

Further, employers can not require an applicant to provide a copy of his or her criminal record.

Significantly, the same criminal history information that can not be requested of applicants can lawfully be obtained from other sources. Accordingly, employers have traditionally sought assistance of background check agencies in obtaining criminal histories of applicants or checked public records themselves.

In some instances, employers may be required by law to undertake certain criminal background checks and may make a “CORI” (Criminal Offender Record Information Act) request.

4. CREDIT CHECKS, INCLUDING CHARACTER AND REPUTATION INVESTIGATIONS, INVOLVE REQUISITE NOTICES, AUTHORIZATION, AND RELATED PROCEDURES

Under a federal consumer credit reporting law and its Massachusetts counterpart, employers using consumer reporting agencies to obtain consumer reports about applicants must follow a complex set of rules (as must the consumer reporting agencies). Generally, a consumer reporting agency is defined as a business that, for monetary fees, regularly engages in assembling information about consumers for the purpose of furnishing consumer reports to third parties. Thus, credit bureaus and many, if not all, background checking businesses qualify as consumer reporting agencies.

Employers may choose from two types of consumer credit reports. A standard or simple consumer credit report details a person’s credit worthiness, credit standing, or credit capacity. An investigative consumer report is more encompassing. It provides information on a person’s character, mode of living, reputation, or other personal traits and characteristics. To obtain this information, a consumer reporting agency may conduct personal interviews of the applicant’s friends, associates, and neighbors – – indeed, anyone with whom the person is acquainted.

The federal and state laws require employers to notify applicants, in writing, of their intent to request these reports. Rules governing the nature of the notice – – its content and how it is presented – – are detailed and require strict compliance. Employers must obtain written authorization to request a credit report. Employers need not obtain written authorization for the investigative report, but must follow additional steps, such as providing the consumer reporting agency with a certification, and employees with certain disclosures, if requested. These steps must be taken within very strict time periods. If employers take adverse action with respect to the applicant based upon either type of report, the employer must provide the applicant with a copy of the report and provide written notice of his or her rights, so the applicant can contest any of the subject matter of the report.

Most consumer reporting agencies provide the requisite forms for consumer credit reports and investigative credit reports. Employers should nonetheless familiarize themselves with this law so they can satisfy themselves that they are in compliance.

SUMMARY

In today’s atmosphere, employers feel a unique responsibility to maintain and ensure, to the extent reasonably possible, workplace safety. This involves an understanding of just whom the company is hiring – – resulting, in turn, in increases in background checks and other pre-employment inquiries by employers. At the same time, employers continue to have the responsibility to guard against unlawful workplace discrimination – – indeed, to protect civil liberties. The obvious challenge is to harmonize these two responsibilities. An understanding of the pertinent laws is a first step in striking this balance.