Background Checks: Has the past really passed?

In a day and age where job prospects are not as plentiful as they once were, it is important to ensure that we strive to be the best job candidates possible; but that doesn’t mean we’re perfect! You may have a bad credit history, a run-in with the law, or even a photo or two on facebook that you’re not proud of. Although these are all pertinent issues to a potential employer, to what extent can a company check your past when applying for a job?

It is vital to get informed and know your rights as a potential employee to ensure your legal rights are protected. Here’s a section of my book “The Employee Rights Handbook” that deals with just that.

Background Checks

Background checks often provide employers with helpful information about a job applicant, especially to discover if false or misleading information was provided in an employment application (e.g., an overstatement of educational degrees). Certain jobs, such as those dealing with children, the elderly, or disabled require screening under federal and state laws. Companies in the financial and banking industries conduct background checks to determine the creditworthiness of potential employees who will handle money or engage in financial transactions. Other employers, to avoid claims of negligent hiring and retention, are particularly interested in learning more about an individual’s criminal history and arrest record before hiring. Background checks can range from verification of an applicant’s Social Security number to a detailed account of the potential employee’s history and acquaintances. Some employers even search social networking Websites for the profiles of applicants.

However, various federal and state laws prohibit employers from violating an applicant’s rights of privacy, especially concerning their medical information, credit history, school records, or military service. The following information will highlight the law in this area and advise applicants of the steps to take if information is misused.

ARREST RECORDS AND CRIMINAL HISTORY. The law involving arrest records is favorable to the rights of individuals in most states. Although arrest record information is public record, employers are not permitted to ask questions verbally or in writing about past arrests since these often end in acquittal, dismissal, withdrawal of charges, or overturning of the conviction. Most states do not allow employers to take adverse action against an applicant based on an arrest or criminal accusation that is not pending or resulted in the applicant’s favor. Some states, including California, prohibit employers from seeking the arrest record of a potential candidate from any source unless the person is out of jail but pending trial. Additionally, an employer may violate federal and state discrimination laws when it inquires into an applicant’s past arrest or criminal history without justification. Criminal convictions are treated differently under various state laws. In New York, for example, an employer may only inquire about a criminal conviction of a misdemeanor or felony (not a lesser offense, like a traffic conviction), and cannot deny employment based on a criminal conviction unless there is a direct relationship between the conviction and the job sought (e.g., such as for a public utility, law enforcement, security guard firm, or child care facility), or employment of the applicant poses an unreasonable risk to property or safety. In many states, criminal histories or “rap sheets” compiled by law enforcement agencies are not public record and aren’t accurate. Because the law varies so in this area, it’s a good idea to research and understand your state’s law when applying for a job if you’ve been arrested or possess a criminal conviction record. Speak to a knowledgeable employment attorney for advice and guidance where applicable. If you are an African American or Latino, recognize your rights and ability to file a charge of discrimination with the EEOC and sue the potential employer for race, color or national origin discrimination when you are not offered a job as a result of a distant criminal conviction or arrest not leading to a conviction. Practice how you will respond to an illegal verbal or written inquiry by a prospective employer. Challenge all company action in the checking of your arrest records or criminal convictions or being denied employment since the recent policy of most states is to encourage the employment of former offenders

PRE-EMPLOYMENT DRUG AND ALCOHOL TESTING. Drug screening tests are on the rise, particularly in high-technology and security-conscious industries. They generally have been upheld as legal, particularly with respect to job applicants (as opposed to employees who are asked to submit to random tests as a requisite for continued employment). Applicants have fewer rights to protest such tests than employees. The reason is that drug tests are generally not viewed as violating people’s privacy rights, since applicants are told in advance that they must take and pass the test to get the job and that all applicants must submit to such tests even to be considered for employment.

However, the right to test does not give potential employers the right to handle test results carelessly. Unwarranted disclosure of this information can result in huge damages, so be aware that you have rights in this area. You may also have rights in the event you are refused a job because you allegedly failed a test and it is determined later that there was a mistake in the test results (in other words, that the test results were really negative).

Drug and alcohol tests of job applicants are neither encouraged nor prohibited by the ADA, and the results of such tests may be used as a basis for disciplinary action. The reason is that an employer does not have to hire an applicant who poses a direct threat to the health or safety of himself/herself or others. In determining whether an individual poses such a threat, the nature and severity of the potential harm, duration of the risk, and the likelihood and immediacy that potential harm will occur are all factors to consider. An employee or applicant who is currently engaging in illegal drug use is not protected under federal ADA law. Nor is a current alcoholic whose employment presents a threat to the safety of others.

INVESTIGATION OF SOCIAL NETWORK SITES. Many employers are now using social network websites as a tool to investigate a candidate’s background and frequently reject applicants after learning the person is an alcohol or drug user or parties excessively. While no law prohibits employers from searching online social network sites to conduct background checks of job applicants, some states, including New York, have laws prohibiting companies from refusing to hire workers as a result of legally permissible recreational activities (such as the use of alcohol or cigarettes) before or after the work day.

Be aware that if you are denied a job because you post negative comments about an employer’s labor practices, this may violate the National Labor Relations Act. You may also have a viable lawsuit resulting from a breach of your privacy rights in this area.

For the full list of topics, visit to purchase “The Employee Rights Handbook” today!

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