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 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.
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.
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.