Employment Screening and Background Checks – Part II

Newspaper headlines are replete with cases of embezzlement by employees and violence in the workplace. Government statistics note alarming trends for increases in criminal activity at the workplace. To stem this tide, employers have turned to Credit Reports and Criminal Record Checks as two sources of information they may legally obtain about prospective and existing employees.  However, there are statutes that govern the use of the data employers obtain.

• Credit reports – The Fair Credit Reporting Act, 15 U.S.C. § 1681, (FCRA) requires employee consent and disclosure.  Employees or applicants must be notified of the existence of a report, consent to the disclosure of the report and be provided with a copy of the report if it results in an adverse personnel action.  The employer must certify that it is requesting the credit report for employment purposes, that it has made the required written disclosure to the individual, and that it has obtained the individual’s written authorization permitting the procurement of the report.  The employer must also certify that it will provide the required disclosures if any information in the report results in adverse action against the individual. 

Be aware in using credit reports to evaluate candidates that the Federal Bankruptcy Act prohibits an employer from discrimination in hiring or retaining an employee solely because the employee or someone associated with him/her has filed for bankruptcy or has not paid a debt dischargeable in bankruptcy, see Thomas v. Dennis Real Estate, 1989 WL 114165 (E.D. Pa. 1989). Many employers question the benefit of credit checks since they are prohibited from using bad credit as a reason for not hiring someone when the individual his filed for bankruptcy. The result is only those individuals with late payment histories and charge offs can be weeded out, while those with bankruptcies can not be treated discriminatorily.

 

• Criminal Record Check – A Pennsylvania employer’s use of criminal history record information must be in compliance with the Criminal History Record Information Act.   Felony and misdemeanor convictions may be considered only to the extent to which they relate to the applicant’s suitability for employment in the position for which he/she has applied, 18 Pa.C.S.A. § 9125(b).

If the employer’s decision not to hire the applicant is based in whole or in part on criminal history record information, the employer must notify the applicant in writing, 18 Pa.C.S.A. § 9125(c). 

By implication the Act appears to prohibit consideration of arrests, or convictions of summary offenses.   Therefore, consider only felony and misdemeanor convictions, not summary convictions or charges without a conviction.

 

These are examples of issues of which you should be aware when doing any employment screening.  You should consult with an employment law attorney before you begin a screening program.  There are numerous issues that must be considered.