What Employers and Employees Should Understand About Conducting Background Checks

Posted by Jason Shinn on January 05, 2012

Under both federal and Michigan law, employers may generally conduct comprehensive background checks on job applicants as long as the employer has obtained the appropriate waivers and does not discriminate in the equal enforcement of the policy. Going beyond this generality, employers and employees should also consider the following:

Employers should view the application process as their earliest opportunity to obtain these waivers and as an opportunity to look for anything in the application or resume that might raise a red flag. In this regard, recommended provisions include:
Acknowledgment that false or misleading answers on application or during interview will result in rejection of the application or dismissal in the event the applicant is hired;
Authorization to receive employment records;
Authorization to release employment records; and
Authorization for drug screening.
WHen it comes to conducting a background check, including a criminal history background check, employers must be aware of the limitigations. These include:
A Need to obtain a waiver for background check and future references;
Employers may not request or maintain information on arrests or detentions;
Employers May request or maintain information on convictions;
May refuse to hire on the basis of information obtained only if there is a job related reason for doing so; and
Additionally, the EEOC has taken the position that a conviction alone cannot be the basis for refusal to hire under Title VII.

Employee Screening.jpg

Employment Applications

Employers should view the application process as the earliest opportunity to obtain these waivers and as an opportunity to look for anything in the application or resume that might raise a red flag.

In this regard, recommended employment application provisions include:

  • Acknowledgment that false or misleading answers on an application or during the interview process will result in a rejection of the application or dismissal if the applicant is hired;
  • Authorization to receive employment records;
  • Authorization to release employment records; and
  • Authorization for drug screening.

Background Checks

When it comes to conducting a background check, including a criminal history background check, employers must be aware of the following limitations:

  • Employers need to obtain a waiver for background check and future references;
  • Employers may not request or maintain information on arrests or detentions;
  • Employers may request or maintain information on convictions;
  • Employers may refuse to hire on the basis of information obtained only if there is a job related reason for doing so; and
  • The EEOC has taken the position that a conviction alone cannot be the basis for refusal to hire under Title VII.

Using Social Media to Conduct Background Checks 

A hot topic for HR professionals is whether a social media investigation should be performed. This usually involves searching the usual suspects, e.g., Facebook, LinkedIn, Twitter, and the like, for information about an applicant. Certainly there are legal risks if a company uses social media to screen a job applicant. But equally true is that reviewing an applicant's publicly available social media profile provides an additional treasure trove of information in which to assess a candidate's professional qualifications.

For example, John Pagel, Marketing Manager at Kings Dominion, explained that he has "asked a few prospective employees for their social media information, based on the specific job title, which was for a social media coordinator." Thus, Mr. Pagel's interest in the applicant's pages was to solely evaluate their knowledge and experience in using social media.

Personally, I think Mr. Pagel's approach is certainly reasonable. I also like the fact that Mr. Pagel was not simply on a fishing expedition in terms of perusing through an applicant's social media outlets and, instead, had a legitimate and clearly stated business reason for doing so.     

For more information and best practices for using social media as a hiring tool see Using Social Media to Screen Job Applicants - A Few Recommendations for Employers. 

Closing Thoughts

The preceding points are by no means exhaustive. But they are important points employers and HR professionals should discuss with their legal counsel. These points, however, are certainly no substitute for competent legal counsel retained to address the particular facts and circumstances of your hiring procedures. 

Jason Shinn is an employment lawyer who has worked with companies and individuals since 2001 to address employment law issues under state and federal employment laws. His experience includes counseling these clients on day-to-day employment matters, including emerging issues at the intersection of employment and social media law.  

We're Hiring But Please Don't Apply if You're Unemployed

Posted by Jason Shinn on September 04, 2011

Job Search.jpgA proposed Michigan bill, "The Fair Consideration of the Unemployed Act" (PDF) would prohibit discrimination against the unemployed when it comes to job postings. This bill was introduced by State Representative Jim Ananich, D-Flint.

If signed into law employers could face a $5,000 fine for a first violation and a $10,000 for each subsequent violation.  

As proposed, the Michigan Fair Consideration Act would prohibit an employer or its agent, from publishing job postings "stating or suggesting" that:

  • Current employment is a job qualification; 
  • An application from a job applicant who is currently unemployed will not be reviewed and the applicant will not be considered for an interview or be hired; and
  • Only applications for employment from applicants who are currently employed will be considered or reviewed.

Similar legislation was passed in New Jersey and was introduced in the U.S. House in June.

Is There a Need for Unemployment Discrimination Legislation?

A recent article in the New York Times, The Help-Wanted Sign Comes With a Frustrating Asterisk (by Catherine Rampell) seems to substantiate there is some bias against the unemployed. That article noted:

A recent review of job vacancy postings on popular sites like Monster.com, CareerBuilder and Craigslist revealed hundreds that said employers would consider (or at least "strongly prefer") only people currently employed or just recently laid off. 

Current Protection for the Unemployed  

Under Michigan and federal law, the practice of excluding unemployed people from job applications does not facially violate discrimination laws because unemployment is not a protected status, like age or race.

This practice, however, may have a disproportionate impact on older workers and minorities. In this regard, the Equal Employment Opportunity Commission held a hearing earlier this year to examine the practice of excluding currently unemployed people from job applicant pools. According to Department of Labor records, 33.8% of unemployed workers are 40 or older and this number jumps to 52% among the long term unemployed. Latinos and African Americans are also over represented in the pool of the unemployed.

Take aways

The Michigan legislation did not move forward in committee prior to taking its summer recess. So Michigan employers may use employment/unemployment status in screening applicants. But that does not mean that this practice is recommended. 

First, an employer screening applicants based on unemployment status could face a claim that such a practice has an unlawful disparate impact on applicants falling under a protected category, e.g., age or race. It is, therefore, prudent to carefully review all current and prospective job postings to determine if employment status is listed or referenced as a criteria for applying.      

Second, the unemployment rate has steadily risen since 2001 (going from 4.2% in January 2001 to the current 9.1% rate). This translates to approximately 14 million people being unemployed. While the practice of automatically excluding 14 million applicants based on unemployment status may not be illegal, it hardly constitutes "due diligence" in screening job applicants. Similar issues were also discussed about rejecting applicants based on a past bankruptcy filing.  

Third, employers already face a well-developed regulatory landscape when it comes to unlawful discrimination in hiring and other employment decisions. But adding the restriction proposed in Michigan's Fair Consideration Act - if strictly limited to job postings - provides a sufficiently bright-line restriction. That restriction should be easily implemented and does not impose on employers any new record keeping requirements.

We will continue to monitor this legislation and would appreciate hearing perspectives from both job applicants and hiring professionals on this topic, whether you think it is needed, and if you have an personal experience with either.