Ready, Set, Hire! An Overview of Legal Issues in the Hiring Process for Businesses (Part 4 of 6)

Background Checks of New Employees

Let’s face it, hiring a new employee is a very important part of your business. You set out to find the perfect candidate for the position hoping to add an important characteristic to your business. It is only reasonable for employers to want to gather as much information about a candidate before making a job offer.

Legal Issues of Background Checks

There are a variety of legal issues that arise when using background checks as part of your hiring process. First, it is important to ensure that you are treating all categories of potential employees the same. It is illegal to use background checks for people of certain races, genders, religious backgrounds, colors, or national origins and not for others. Additionally, under the Genetic Information Nondiscrimination Act (GINA), it is illegal to obtain information about an employee’s genetic background, or, if you have that information, to use it to make employment decisions.

Issues also arise under the Fair Credit Reporting Act (FCRA). The most important element of this law is obtaining written authorization from the employee before proceeding with a background check. The authorization must clearly inform the prospective employee of your intentions, how you will use the report, and the source from which you obtain the information. Failure to comply with the FCRA may give rise to litigation if the employee is passed over for a position based on information uncovered by the background check.

Criminal Records in Hiring

One common question that arises about background checks is how an employer should use criminal records. Many states have enacted laws that set forth the circumstances in which an employer is entitled to consider certain criminal offenses. For instance, in Pennsylvania summary offenses may not be considered in the hiring process, and misdemeanors and felonies can only be considered if the offenses have a bearing on the employee’s ability to perform the specific job duties. It is also important to recognize that the Equal Employment Opportunity Commission has made clear that there is a distinction between being arrested and being convicted, so employers must tread carefully in this regard.

Staying Compliant

The issues concerning employee background checks are becoming even more complicated in the 21^st century, given the volume and type of information that is available to an employer. This may make employers consider whether they want to know about a prospective employee’s background at all before making a hiring decision. Nevertheless, once an employer has learned about certain background information, a whole host of legal issues can and often does arise. Accordingly it is wise to consult legal counsel to assist you in navigating these murky waters.

Up next, we will review social media and the hiring process, and the numerous legal issues that can arise in this medium.

This is a guest contribution by Eric J. Stark, Esq., of Caldwell & Kearns, P.C. in Harrisburg, PA. You can contact him via email or at 717-232-7661.

Caldwell & Kearns, P.C. is located at 3631 North Front Street, Harrisburg, PA 17110. They specialize in real estate, employment, business, and family law. Visit their website for more information.