Home » MBJ FEATURE » Employers can go deep into your background but must avoid pitfalls

Employers can go deep into your background but must avoid pitfalls

Steven Cupp

By TED CARTER

Mississippi pretty much leaves it to the federal government to regulate job and credit background screenings of state residents.

Under federal provisions, screeners can make a deep dive into a job applicant’s past. They can look into credit history, consumer history, criminal history, civil litigation history, driving records, previous employment history, educational history, social media history, and general reputation and character history.

Through the Fair Credit Reporting Act, the federal government treats background screenings for jobs, apartments, club memberships and other purposes the same as it does credit checks. Employment protections tend to be few in at-will employment states such as Mississippi. That applies to pre-employment as well, said Nick Norris, an employment law specialist in the Jackson firm Watson and Norris.

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But, Norris said, the Fair Credit Act does specify some protection. First, the employer has to get the candidate’s permission to do a criminal background check and provide the job candidate a copy “before taking adverse action,” Norris said.

“A lot of employers breach this,” claimed Norris, who has been in employment law for 15 years.

The notice is much like the one a credit applicant is entitled to receive after a loan rejection based on a negative finding. 

For credit applicants, the notice gives five days to get a credit reporting bureau correction. The job applicant also gets five days to correct the background report after receiving the address of the company that supplied the negative information. “He can say, ‘Hey, this is wrong,’” Norris said.

These, according to Norris, are the main protections.

For background screeners, speed is what keeps them in business. That five-day challenge period afforded the job applicant can be an unwanted speed bump.

“The primary thing we see employers do is give the notice and get the permission” to do the screen, Norris said. “But I can’t tell you how many times the employer doesn’t give the employee a copy of the background check.”

As soon as screeners and employers get the background check information, they often move on “without giving the employee a chance to see if it can be corrected,” he said.

And too often on a criminal check, the screeners don’t “just pull convictions,” Norris said. “They pull charges.”

Details on charges can remain in a criminal justice database for up to seven years and beyond, according to Norris.

A 15-year-old DUI charge can surface. And if an employer finds it, he can terminate the worker for not revealing it, Norris said.

A screen can be used both before and after hiring. In fact, it can be used “at any point,” Norris said.

He said he has had several cases in which  the employee passed the background check but was later dismissed after a new screen uncovered negative information,” he said.

“We start to get suspicious” when “it is done five years into the employee’s employment,” Norris added.

Workers can counter with legal action “just as long as your rhyme or reason is based on something discriminatory,” he said.

Those legal consequences can put both the screeners and the company hiring them in a bind, according to Steve Cupp, an employment law specialist with Fisher Phillips in Gulfport. “For example, the FCRA (Fair Credit Reporting Act) allows for a rejected candidate to file a civil cause of action if the background check is not performed correctly,” Cupp said in an email.

Adding to an employer’s burden is a 2012 guidance from the U.S. Equal Employment Opportunity Commission that said someone should not be ineligible for hiring based solely on a background check. The commission instead recommended employers do an “individualized assessment,” said Melissa Sorenson, executive director of the National Association for Professional Background Screeners.

“It encourages employers to give applicants a chance to explain and make case to the employer,” she said.

It is wise to wise to consider that guidance before implementing a background check policy, Cupp said. A blanket rule of not hiring someone because the person has an arrest or conviction can get an employer in trouble, he said.

But if that sport of policy is want the company wants, it had better apply it across the board, Cupp advised.

“For example, if the company wants to exclude from a certain sensitive position anyone who has had a felony theft conviction within the last three years, then this exclusion should be applied uniformly with all candidates.”

A company that overlooks one candidate’s felony conviction because the candidate has other skills is exposing itself to “claims of disparate treatment or disparate impact,” Cupp said.

But companies do this, anyway, said Crutcher Pepper, a longtime labor and employment law specialist with the Jackson office of Balch & Bingham, in an email.

“I have been a management employment lawyer since 1982 and I don’t remember a time when so many employers were willing to overlook so many applicant history problems in order to get jobs filled by people competent to do them,” Pepper said.

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About Ted Carter