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Background Checks

Many employers require background checks, both as a condition of being hired or as continuing employment.

Under federal and state law, employers may perform background checks on applicants for employment.  Some occupations may require them. However, if an employer requests and uses an applicant’s background information, the employer must comply with federal and state laws that prohibit discrimination on the basis of race, national origin, color, sex, religion, disability, age, or genetic information.  Additionally, employers must treat applicants equally when performing background checks.  If an employer intends to use background information to make a hiring decision, the employer should request the information from all candidates. Types of background checks employers conduct include: criminal, credit, and employment history. Employers may also consider public information such as court records, and sex offender records or information found on internet websites like Google, Twitter, Facebook, and LinkedIn. Under federal law, if an employer uses a company in the business of compiling background reports to conduct a background check, the employer must inform the applicant that it may use the information to make a hiring decision and get the applicant’s written consent before obtaining the report.  Although applicants cannot be compelled to provide consent, an employer may decide to reject the application of any individual who does not.

What Are the Rules on Criminal Records Checks?

Employers conduct criminal background checks, often times to prevent liability.  If an employer fails to perform a criminal background check and hires an individual with a criminal background, who later damages property or injures another while in the course of doing business, the employer can be held liable if a criminal background check would have revealed the individual’s history.

Many states have laws restricting employer’s use of criminal records in making hiring decisions.  Under Texas law, most employers are limited to a seven-year criminal background check for positions paying under $75,000.  If the position will pay more than $75,000, employers are entitled to check the applicant’s criminal background back to the age of eighteen. Additionally, Texas law does not require applicants to disclose the existence of any criminal records that have been expunged by a court order. Criminal records of minors are sealed so a criminal background check should not reveal any criminal convictions prior to the applicant turning eighteen.  If an employer discovers this information, it should not be used in hiring decisions.

What are the Rules on Credit Checks?

Federal law permits employers to conduct a credit history check, as long as there is consent from the applicant. An “Employment Credit Report” contains information about the applicant’s credit and payment history, but will not contain private information like account numbers, credit score, age, or year of birth. Credit reporting agencies are required to provide relevant and accurate information.

If an employer uses an applicant’s credit history to make a hiring decision, the applicant must be provided a copy of the report and a written explanation of the effect.

Why Verify Employment History?

Employers conduct employment history checks to verify an applicant’s previous job titles, tenure and salary. Employers may also request information regarding the applicant’s separation from employment.  Employment verification can be provided by reporting agencies such as Equifax, TransUnion, and Experian, or Group One for medical professionals. Past employers may also be contacted for employment verifications.

Similar to a credit check, if a hiring decision is based on an employment verification report, the applicant is entitled to a copy of the report.  If a reporting agency provides inaccurate information regarding an applicant’s work history, the applicant is entitled to correct the information.

What Public Information Is Available?

While employers may use a reporting agency to obtain private background information, it is important to remember that employers have access to any public information available about an applicant. Public information available to employers include civil and criminal court records, sex offender records and any information on social networking sites like Facebook, Twitter, and LinkedIn. Court records can reveal the litigiousness of an applicant as well as the nature of the cases. Sex offender records are particularly important in identifying whether an applicant would be a good candidate for certain position such as childcare workers, caregivers, and medical professionals. Social media posts can reveal details about an applicant that an employer may use to reject an application, like a blog post to which an employer’s clients may find offensive. Employers are still prohibited from using public information obtained to discriminate against applicants for a protected reason.

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