A recent article by two labor and employment attorneys published on the Association of Corporate Council (ACC) website – ‘Top Ten State Background Issues’ – summarizes key state background check issues that employers need to know about since there are an increasing number of state issues that must be considered by employers when conducting employment screening and drug testing on job applicants.
The article – written by Dani Sanchez-Gleason, Esq., Labor & Employment Counsel, of BMC Software, Inc., and Richard Greenberg, Esq., of Jackson Lewis LLP – explains that while federal law governs background checks under the Fair Credit Reporting Act (FCRA), employers should be aware of the following ten issues with state background checks:
- 1. State Drug Testing Laws: Employers using drug testing as part of their employment screening process should know some states require written policies and utilization of certain mandated procedures.
- 2. State-Mandated Background Checks: Industries such as health care and education may be required by state law to conduct background checks on employees. Sometimes these background checks are conducted by Consumer Reporting Agencies (CRAs) while other times they are conducted by a state agency with access to the Federal Bureau of Investigation (FBI) database.
- 3. State Background Check Procedural Requirements: While employers conducting background checks through CRAs usually only consider the federal FCRA, roughly a dozen states have state “mini FCRA” laws that may require additional disclosure and language.
- 4. Reporting Limitations Imposed by State Laws: Employers need to understand the limitations imposed on CRAs by state laws, since some state laws restrict the reporting of convictions over seven years old unless certain salary thresholds are met.
- 5. State Limitations on Use of Convictions for Disqualification: Certain state laws impose restrictions on the ability of employers to make job-related decisions based on the criminal conviction history of applicants and employees. Some states prohibit employers from disqualifying applicants and employees unless their convictions are job-related.
- 6. State Limitations on Use of Arrests that Did Not Result in Convictions: Some state laws pose limitations on employers using information regarding arrest records – and prohibit the use of arrests that did not result in convictions – for employment decisions.
- 7. State Limitations on Use of Pending Arrests: Some jurisdictions distinguish between the rights of employers regarding non-pending and pending arrests, meaning employers may not base employment decisions on a non-pending arrest but may consider a pending arrest.
- 8. State Limitations on Use of Credit History: While four states – Hawaii, Illinois, Oregon, and Washington – restrict or prohibit employers from conducting credit checks, other states have similar legislation pending and employers should ensure any credit background checks comply with state law in states with restrictions.
- 9. Propriety of Internet Checks: Since employers are using social media for information about job applicants, they should be aware the risks associated with such searches. While no laws currently prohibiting an employment decision based on information a job applicant places in the public domain, employers should be careful not violate state or federal discrimination laws by basing employment decisions on protected characteristics, such as race, age, sexual orientation, marital status, disability, genetic information, sexual orientation, and political affiliation.
- 10. State E-Verify Requirements: After applicants are hired, employers must verify their authorization to work in the United States with the federal “I-9” form. In addition, several states mandate the use of E-Verify, a web-based employment eligibility verification system, for certain employers and vendors, and four states – Arizona, Mississippi, South Carolina, and Utah – require the use of E-Verify for all employers in the state.
For a .PDF version of the article – ‘Top Ten State Background Issues’ – visit Association of Corporate Council (ACC) website at: http://www.acc.com/legalresources/publications/topten/State-Background-Check.cfm?makepdf=1.
These same issues have been noted by Employment Screening Resources (ESR) in the past and this article is an excellent summary of the various issues involving state laws and background checks. For more information about background checks, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.
About Employment Screening Resources (ESR): Founded in 1996 in the San Francisco Bay area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. ESR is Accredited by The National Association of Professional Background Screeners (NAPBS®) and is a Designated E-Verify Employer Agent helping U.S. businesses maintain legal workforces. For more information about Employment Screening Resources, visit http://www.ESRcheck.com or email ESR News Editor Thomas Ahearn at tahearn@ESRcheck.com.