It’s gettin’ so a businessman can’t expect no return from a fixed fight. Now, if you can’t trust a fix, what can you trust? For a good return, you gotta go bettin’ on chance – and then you’re back with anarchy, right back in the jungle.
Johnny Caspar, played by Jon Polito, Miller’s Crossing
The above quote is from Miller’s Crossing (a phenomenal movie) and is delivered by Jon Polito’s character Johnny Caspar, a ruthless gangster, who is offering his take on the ethics that should be expected when it comes to Mr. Caspar fixing fights.
As Mr. Caspar’s dialogue shows, ethics can be a matter of flexibility. In the context of the employment relationship, most employers and employees probably would agree that the employment relationship is flexibile enough to tolerate a certain amount of puffery, resume exagerration, and even white-lies.
But some companies offer services for employees who are willing to take “ethical flexibility” to levels reserved only for contortionist.
Take for example this description from Paladin Deception Services:
Paladin Deception Services is here to assist you in obtaining the fictitious reference, the little white lie, or the alibi that you need. Our agency can provide you with either male or female testimonials over the phone in the local area code that you require … Get the verification that you need!
Paladin’s website further explains that it provides a “case manager who will walk you through the entire process from start to finish, developing an operational plan of disinformation best suited to your needs.”
Combating Disinformation with Employment Background Checks
Even without employment disinformation services like the above, employers routinely conduct some degree of due diligence when it comes to job applicants and prospective employees. The scope of your company’s background checks will depend upon its particular goals and circumstances. Ideally, that scope should be determined by the company’s management, its human resource professionals, and its employment attorney. At a minumum, these stakeholders should include the following areas in that determination when it comes to implementing an employee background check procedure:
- Credit Scores. Job applicants need to be given proper notice and give their written consent if your company intends to review their credit score. Reviewing an applicant’s credit rating brings into play the Fair Credit Reporting Act (FCRA), a federal statute that permits employers to request a credit report for employment purposes.
- Pre-Adverse Notice and Credit Scores. Your company may need to provide a “pre-adverse” disclosure if it uses a credit report to make certain adverse employment decisions such as hiring, firing, or promoting. Under the FCRA, an employer must give the individual what is often called a pre–adverse action disclosure that includes a copy of the individual’s consumer report and a specific document titled “A Summary of Your Rights Under the Fair Credit Reporting Act.” And after an employer has taken an adverse action, the individual must be given additional information, including (i) the name, address, and phone number of the consumer reporting agency that supplied the report; (ii) a statement that the agency that supplied the report did not make the decision to take the adverse action and cannot give specific reasons for it; and (iii) a notice of the individual’s right to dispute the accuracy or completeness of any information the agency furnished; and (iv) a written or electronic disclosure of the numerical credit score used in taking any adverse action.
- Criminal Background Checks. If criminal background checks are used to screen applicants or employees, employers should obtain the individual’s written authorization and a signed release.
- Criminal Background Checks and Consistency. Conducting criminal background checks should be used in a consistent manner. Inconsistent investigation may result in an inference of discrimination against a certain racial or ethnic group. It is also important to know what can and cannot be asked when it comes to criminal background checks. For instance, under Michigan’s main employment statute, the Elliott-Larsen Civil Rights Act (ELCRA), an employer cannot request arrest records, except that it may request records of pending felony charges and past felony arrests when a conviction did not occur.
- Driving Records. If your company needs to review an applicant’s driving record, complete a Michigan Department of State Commercial Record Request and submit it to the Michigan Department of State Record Lookup Unit. Under certain circumstances, this request does not require the applicant’s consent or authorization, but you should dicuss this topic with an employment attorney.
For more information about preemployment background checks and compliance with federal or Michigan employment laws, contact Jason M. Shinn. He is an experienced Michigan employment attorney who works with businesses and individuals to address employment law issues, and, if necessary, litigate employment law disputes in Michigan and federal courts.