Because employers face increasing risk of liability for negligent hiring and for the conduct of their employees, employers are increasingly turning to the use of background checks to screen applicants for employment. An employer may be liable for negligently hiring or retaining an incompetent or unfit employee if the employer knew or reasonably should have known that the employee was a potential risk to others.
Background checks not only assist employers in hiring the most qualified candidate, but also help to protect other employees and third parties with whom the employer does business from employees who may be dangerous or have a record of criminal behavior. Employers have been sued for negligently hiring an employee who later injures someone as a result of his/her employment. For example, if an employer hires someone with a criminal record to service products sold to customers, in their home, and the worker commits a crime against the customer, the customer may bring a negligent hiring claim against the employer.
There is a “ban the box” movement that has taken place in several states and cities across the United States. This trend involves removal of questions regarding criminal history on an employee’s initial employment documents. Proponents of the movement argue that by removing questions regarding criminal history, employers are more likely to make unbiased judgments on a perspective employee’s qualifications without the stigma of a criminal record. In many places, the movement has cut across political and geographic lines. In some jurisdictions, these laws are only applicable to public employees.
As of April 3, 2015, under Executive Order 41 issued by Virginia Governor Terry McAuliffe, all state agencies, boards, and commissions are prohibited from asking questions about criminal convictions on employment applications. Criminal history can be a factor in state employment decisions only if an individual’s history bears a specific relation to the job to be filled. The order states that it is intended to allow applicants to be thoughtfully considered for positions for which they are qualified.
Often, as a part of the application process, an employer will want to gather information from a prospective employee’s current or former employers. In Virginia, employers who provide information to a person’s prospective or current employer concerning the person’s professional conduct, reasons for separation, or job performance are immune from civil liability provided that they are not acting in bad faith. Although employers are presumed to be acting in good faith, that presumption can be rebutted if the former employee can show that the employer disclosed such information knowing that it was false or with reckless disregard for whether it was false or not. Additionally, it is a crime in Virginia for an employer to willfully and maliciously prevent or attempt to prevent its former employee from obtaining employment with another person. Thus, employers in Virginia can limit their liability most effectively by providing neutral, fact-specific information about former employees and avoiding making comments that may be perceived as negative.
Employers may take many different steps to check into an applicant’s background. Depending on the nature of the position in question, employers may choose among the following methods for conducting a background check on applicants.
When obtaining background information of any kind, employers should be careful to ensure that the information obtained has some relevance to the job in question. Also, employers should ensure that the information obtained does not create a disparate impact upon members of a protected classification. If an employer obtains information that has no relevance to the job and that creates a disparate impact upon members of a protected group, the employer may be subject to a claim of discrimination.
If an employer disqualifies an applicant because of information learned during a background check, the employer should be consistent in taking similar actions against other applicants or employees based on equivalent information about them. For instance, if an employer rejects an applicant because of a criminal conviction, the employer should reject other applicants or discharge current employees if the employer learns that they have similar convictions. Similarly, if an employer learns that an employee fabricated part of his/her work or educational experience when applying for the job, the employer should terminate the employee. Otherwise, the employer may undermine its ability to terminate other employees when resume fraud is discovered, as it is difficult for employers to assert that dishonesty is tolerated in some employees, but is grounds for termination of other employees.
The Fair Credit Reporting Act (FCRA) has compliance requirements for employers who use consumer reports in making employment-related hiring, promotion, and termination decisions. The term “consumer report” is defined very broadly by the FCRA as any written, oral, or other communication from a consumer reporting agency bearing upon the consumer’s credit worthiness, standing, credit capacity, character, reputation, personal characteristics, or mode of living. It includes, among other things, motor vehicle, criminal background, bankruptcy, and medical and credit history records that are used “in whole or in part” to assess an individual’s qualifications for employment. These consumer reports must be generated by a consumer-reporting agency for the FCRA to apply. Generally, the FCRA does not apply to an employer’s ability to conduct its own reference checks by contacting former employers or otherwise checking public records or documents. In other words, employers are allowed to obtain consumer credit reports on potential job applicants in order to determine an applicant’s eligibility for employment.
Employers may also obtain consumer credit reports on current employees who are being considered for promotion, demotion, reassignment, or retention.
An investigative consumer report may include the same types of information – character, general reputation, mode of living. This type of information is obtained through interviews or discussions with co-workers, associates, relatives, or others who know the individual personally.
There are three disclosure provisions under FCRA:
The FCRA allows employers to use consumer credit reports for consideration or evaluation of an individual for employment, promotion, reassignment, or retention by the employer. However, any other use is strictly prohibited. Also, even if an employer uses a credit report for legitimate employment purposes, the employer may still face liability if the extensive notification requirements are not met.
Employers have to notify job applicants or employees in writing that the employer intends to review the applicant’s credit report to determine his/her eligibility for employment or promotion or other employment action. The written notice of the employer’s intention to obtain a consumer report must generally be in a document that consists solely of this notice. The employer must also obtain written consent from the applicant or employee that grants permission to the employer to obtain such a report.
Federal Trade Commission (FTC) opinion letters indicate that an employer may combine the written notice and permission described in the previous paragraphs on a single form, but nothing else may be included on this form.
An employer need only get one written consent from the applicant or employee during the employee’s tenure. The employer may obtain a credit report any time after the applicant or employee signs the disclosure and provides consent. In the event the applicant or employee refuses to give such written permission, the employer is prohibited from obtaining a credit report. Employers should discuss with counsel appropriate language to be used to notify the job applicants of the need for the report and the consent obtaining permission.
Employers must also certify to the consumer reporting agency that provides the report that the employer is complying with the notice requirements of the FCRA. If the employer fails to make these disclosures to the agency, the agency is prohibited under the FCRA from furnishing any credit report to the employer.
If an employer refuses to hire an applicant or takes other adverse action (for instance, declining to promote or retain an employee) against an employee based on information contained in the credit report, the employer must provide the applicant with a copy of the consumer report and make further disclosures to the applicant or employee. Such disclosures include notifying the applicant of the following:
Under the FCRA, both civil and criminal penalties may be imposed for violations. Violators may be held liable for actual damages, attorney’s fees, and all court costs. Willful violators of the FCRA can be held liable for punitive damages.
The Consumer Financial Protection Act of 2010 added provisions to the FCRA. The federal government launched the Consumer Financial Protection Bureau during the summer of 2011 after passage of the act. More information is available at: www.consumerfinance.gov/
Employers should consult with counsel if they intend to use consumer credit reports as a background check tool in order to ensure full compliance with the complicated provisions of the FCRA.
Employers need to be cautious in handling and disposing of employee and applicant documents that contain sensitive financial or personal information, such as:
Regulations passed in compliance with the Fair and Accurate Credit Transactions Act require every employer to take reasonable steps to dispose of documents containing information derived from consumer reports (as defined by the FCRA) to prevent unauthorized access to or use of consumer information. If an employer conducts credit checks or background checks on applicants or employees, the employer must comply with the “disposal rule” in regards to that information.
The disposal rule does not require any specific method of disposal, as long as it is reasonable and appropriate to prevent unauthorized access to and use of sensitive financial and personal information. “Reasonable measures” include shredding or burning. The regulations also contemplate that the employer will conduct due diligence if it hires an outside contractor to do its document destruction. Electronically stored data should be overwritten or erased in a manner that will prevent its retrieval or reconstruction.
The disposal rule also does not address when an employer should destroy information, and does not require an employer to maintain or destroy any particular records. It merely regulates how the records are to be disposed of once an employer decides to dispose of them. An employer needs to be mindful to keep records for review if the employer is under investigation by the government or involved in litigation.
Failure to use reasonable care to dispose of covered documents could result in federal fines of up to $2,500. Companies also face the threat of lawsuits from employees whose information is obtained because the company failed to properly dispose of confidential information.
Although the disposal rule applies only to information derived from consumer reports, employers should take appropriate steps in the disposal of all records containing sensitive personal or financial information to prevent unauthorized access and use of such information, in order to reduce the risks of fraud and identity theft.
An employer may turn to a variety of other sources of information in order to conduct a background check. Such sources may include not only the consumer credit report discussed previously, but also:
Applicants should be notified during the job application process that the employer will be conducting a background check to determine their eligibility for employment. Employers should notify applicants of the types of checks that will be conducted.
In most cases, it is advisable that employers check the personal and prior employment references listed by an applicant and document the information received, or, if not successful, the efforts made. While the law does not require a written authorization from the applicant, employers normally should obtain a broad authorization before conducting these reference checks. Additionally, employers might consider requesting a waiver from an applicant that releases former employers and the requesting employer from any claims relating to the reference check. With this type of waiver in place, a former employer may be more willing to give more relevant information about his/her former employees. An employer also should make sure it has a fully completed application to use as a resource in the reference check, including past employment history, references, names of immediate supervisors, and educational background.
When contacting references, prospective employers should request basic information, such as dates of employment, job duties, performance assessments, wage history, discipline record, tendency for violence, circumstances surrounding discharge, and eligibility for rehire. Although a former employer may not be willing to respond on all of these topics, a prospective employer may shield itself from negligent hiring and subsequent negligent retention claims simply by asking appropriate questions and making notes of the responses given. In addition to asking relevant questions and listening closely to the answers, a prospective employer should take careful notes of information given by a reference, as well as all unsuccessful attempts made to contact references.
When an employer is asked to provide information regarding a former employee, the employer should consider adopting a policy of providing only “name, rank, and serial number” information about former employees. Under such a policy, employers should decline to volunteer any subjective, speculative, and/or undocumented information and provide only the dates of employment and the positions held by the employee. Most employers provide only this limited information in connection with reference checks for fear of a later lawsuit by the former employee alleging claims of defamation, slander, breach of privacy, and/or retaliation.
An amendment was made to the Code of Virginia that clarifies the limitation of information that employers may give out to third parties in regards to former employees. The provision prohibits the release of any personal information that could identify an employee, including an employee’s:
Some exceptions apply that would allow an employer to disclose personal identifying information, including:
Employers should review the driving record of applicants for positions that would require the use of a company vehicle. Driving record checks should be conducted before an applicant is hired and then periodically throughout employment. When checking the driving record of an applicant, employers should confirm that an applicant has a valid driver’s license and review any driving violations, particularly past violations involving reckless driving and driving under the influence of alcohol. However, keep in mind that, under the ADA, alcohol related convictions cannot be used to discriminate against an applicant perceived to be an alcoholic or with a record of alcoholism. As discussed in the following paragraphs, if the employer uses a third party company to obtain this information, the FCRA may be implicated.
Virginia law does not prohibit an employer from performing a criminal background check for an applicant when the employer is considering hiring. However, under the FCRA, an employer must make a disclosure and obtain the applicant’s written consent before conducting a background check. Because of possible disparate impact, an employer must be careful seeking to exclude a candidate automatically solely because of a criminal record. Because arrest and incarceration rates are higher for minorities, such a blanket policy could result in a different treatment of minority groups. Such a practice could subject an employer to a charge of race discrimination. Instead, if a criminal history is discovered, an employer should consider the nature and gravity of the offense, how much time has passed since the offense, and whether the offense bears specific relation to the job for which the person is being considered. These considerations should be weighed, and the employer should document that it considered the circumstances surrounding the criminal history.
In addition, in Virginia, an employer may not ask applicants to disclose expunged criminal charges or arrests, whether on an application form, in an interview, or in another manner. Likewise, applicants are not required to answer questions concerning arrests or criminal charges that have not resulted in conviction.
An employer in Virginia may consider any criminal convictions (other than expunged records) of an applicant in its hiring decision. The EEOC has taken the position, however, that using conviction records as a reason to deny employment disproportionately excludes certain racial groups from employment opportunities, and has therefore advised that those records should only be used when there is a business necessity. The EEOC has further advised that arrest records are not evidence of the commission of a crime and should only be used in very limited circumstances. Virginia law prohibits employers from requesting or using arrest records in making employment decisions.
Some employers in Virginia are required to request criminal background checks. For instance, nursing homes and adult and child day care centers must request a criminal background check either as part of the hiring or licensing process of employees.
The courts and the EEOC have stated that without proof of business necessity, an employer’s use of arrest records to disqualify job applicants is unlawful discrimination.
Because members of some minority groups are arrested substantially more often than Caucasians in proportion to their numbers in the population, making personnel decisions on the basis of arrest information without subsequent conviction information has a disproportionate effect on the employment opportunities of members of these groups.
Credit checks may be performed for positions that involve financial responsibilities. However, the EEOC takes the position that credit checks may have an adverse impact on minorities. Thus, it is a good employment practice to limit the use of credit checks to positions for which there is a legitimate business necessity. Moreover, credit checks only should be performed where such checks are conducted for all applicants for a particular position.
Typically, credit reports can only be obtained through third party entities that prepare such reports for a fee. As a result, the provisions of the FCRA usually apply to employers that obtain credit reports.
Postings on social media sites may reveal information that would be helpful to an employer’s hiring decision. However, employers must know the risks of obtaining that information.
While some information on social media is perfectly okay to consider, information related to legally protected classes or information that would be sensitive in an employer-employee relationship, like an employee’s political affiliation, religious faith, pregnancy, disability, or serious health conditions, are problematic. An employer that decides to perform a social media check should take steps to ensure that the hiring decision is not based on protected or sensitive information. One method of doing that is having a designated social media researcher who reviews social media content and scrubs improper information before providing it to the hiring decision-makers. Sometimes, it is better to steer clear of any social media information.
An employer should only review social media content that is in the public domain or voluntarily made available. An employer should never require an applicant to provide their username or password to restricted information, or otherwise attempt to gain access to a private account.