Tag Archives: Date of Birth

Date of Birth Information, Age Discrimination and Background Checks

By Les Rosen, Employment Screening Resources

Most authorities agree that any information tending to reveal a job applicant’s age should not be requested on an employer application form or during an oral interview. Asking for date of birth during the selection process could violate the federal Age Discrimination in Employment Act of 1967 as well as various state civil rights laws. Asking for date of birth tends to deter older applicants from applying.

If the application material contains date of birth information, the inference is that a firm may be methodically denying consideration of older workers. Many states have rules that prohibit an employer, either directly or through an agent, from seeking or receiving information that reveals date of birth and age before an offer is made. For example, the California Pre-employment Inquiry Guidelines by the California Department of Fair Employment and Housing (DFEH) lists specific age questions that cannot be asked. (See: http://www.esrcheck.com/services/legal_illegal_questions.php)

However, special problems are faced when an applicant’s date of birth is not available for background screening. When researching court records, the date of birth is probably the most important factor needed to identify an individual. Many court records do not contain Social Security Numbers. In fact, in some jurisdictions, a criminal search cannot be conducted without a date of birth. It is also needed in some states in order to obtain a driving record.

Under the Federal Age Discrimination Act, there is not an absolute prohibition against asking for date of birth or age. That is a common misconception among employers. In fact, the EEOC has specifically ruled that asking for date of birth or age is not automatically a violation of the act. However, the EEOC ruling indicated that any such request would be closely scrutinized to ensure that the request has a permissible purpose. The EEOC also indicated that the reason for asking for date of birth should be clearly disclosed so that older applicants are not deterred from applying.

According to a Fact Sheet prepared by the EEOC in 2008:
“Pre-Employment Inquiries:

The ADEA (Age Discrimination in Employment Act) does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.” See: http://www.eeoc.gov/facts/age.html

This is consistent with earlier regulations from the EEOC in 1981 (See 29 Code of Federal Regulations Part 1625).

In order to avoid any liability for age discrimination, some employers send information to the screening firm only post-offer in order to wait to obtain date of birth after the offer has been made. Another method that has been tried is a “date of birth workaround” where somehow the job applicant provides the date of birth directly to the screening firm, perhaps though an 800 number. Not only are these procedures not required by law, but it complicates and delays the background check. It creates an administrative burden for most employers to coordinate giving offers, then collecting the date of birth and then transmitting it to a screening firm, or asking applicants to perform the task.

A better solution is to request date of birth information on the screening firm’s form, and not on any employer form at the same time the original application is filled out. Furthermore, the applicant release forms should not be made available to the person or persons with hiring authority in order to avoid any suggestion that age information was used in any way during any step of the hiring process.

It is recommend that employers keep the screening forms and reports separate from the employee’s personnel file or application papers. Employers can have someone in the office physically separate the screening firm’s form from the application so there is no question that a decision maker has not viewed the date of birth before the applications are reviewed.

In addition, to further protect the employer, the consent form used by the screening company should have a statement that the information is used for identification only and that without such information the screening process may be delayed.

As technology advances, the question over how to handle date of birth may become less of an issue. New online options are available where an applicant can supply the date of birth as part of an electronic and paperless screening system where only the screening firm will be able to see it. That protects the employer completely from having any knowledge of date of birth, and facilitates the screening process.

To address any concerns an employer may have, an employer can consult their legal counsel or seek advice from their attorney or contact the appropriate local or state authority or federal EEOC office.
For more information on background checks and employee screening, see: Employment Screening Resources.

Increased technology and the end of paper and faxing for employment screening

By Les Rosen, Employment Screening Resources

2010 Trends in Screening Trend Six: 

With advances in database technology, and the general acceptance of the HR-xml standardization for database integrations, it appears that the use of paper and faxes is coming to an end.  Not that “Going Paperless” is exactly a new development. Employment Screening Resources, for instance, has offered a totally paperless background check solution to its clients since 2006.  However, integrations between background screening and other applications, such as Applicant Tracking Systems (ATS), or Human Resources Information Systems (HRIS) may have reached a tipping point, so that the adoption will be at a faster rate.

It can also help solve issues concerning date of birth. Because of laws that prohibit discrimination on the basis of age, some employers are hesitant to ask for date of birth.  That creates potential issues since background screening generally requires an applicant’s date of birth in order to establish identity during criminal searches.  However, the EEOC has made it clear that asking for date of birth is not prohibited, but should be approached carefully and requested in such a way that does not deter older applicants. With online system sensitive information such as a date of birth or social security number can be obtained directly from the applicant so that an employer is never in possession of that information pre-hire.

(Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry for 2010. This is the SIXTH of the ten trends ESR will be tracking in 2010.)

The Basics of Criminal Records Searches

Searching for criminal records is much more complicated than it appears on the surface.  Contrary to popular belief, there is no central database available to most private employers to instantly find a person’s criminal record at one touch.  The FBI database is only available to employers that are legally authorized to submit fingerprints, the readouts can be complex and there is even the possibility of errors in those records.  With some 3200 counties in the US, screening firms have developed tools and techniques to identify potentially relevant counties to search, and nearly any county in America can be researched on site within 24-36 hours. The best practices for employers are to identify counties associated with the applicant and to search those counties by going to the courthouse. The way relevant counties are identified is first by using a tool called a social security trace that uses millions of records which show what addresses a social security number is related to. In addition, some employers also search counties where a person has worked or gone to school.  Although such searches are very accurate, as with anything depending on human beings, there is still some small margin of error possible. 

Even assuming a record is found, a professional screening firm must determine if there are sufficient identifiers to associate the record to the applicant, and even if the criminal record belongs to the applicant, numerous states have laws that restrict what can be reported. Many states do not allow the use of arrest records, and even if a state allows it, there may be EEOC considerations. Even if a screening firm can report a conviction, the employer needs to consider whether the use of the record is discriminatory.  An employer should not automatically reject an applicant with a criminal record, unless there is a business justification, taking into account such things as the nature and gravity of the act, the nature of the job and the age of the crime. 

Employers should be careful in the use of commercial databases that are advertised to search millions of records with instant results.  Those 30 second searches are NOT a substitute for a real criminal check at a courthouse and probably would not demonstrate due diligence if used all by themselves. These databases are assembled from a hodgepodge of various sources that are willing to make their data public or to sell data, such as incarceration systems, state repositories or individual counties.  These databases do not cover all states and may not be up-to-date, accurate or complete.  Certain states do not provide date of birth, which is another reason a criminal record may not come up in a database. This can all lead to both false negative and false positive results from databases. A false positive means a person is branded a criminal who is not, and a false negative means a person with a criminal record is falsely ‘cleared.’ 

The commercially available instant criminal reports are best used as a research tool only by a professional screening firm to locate other places to search.  Since they cover such a wide area, they can be very valuable in locating records that a county by county search can miss.  However, these instant databases are also a potential source of litigation against employers and screening firms, with applicants filing lawsuits for being unfairly tarnished as criminal, or victims claiming that the employer did not exercise due diligence.  Even if there is a database ‘hit,’ under the federal Fair Credit Reporting Act, the background screening firm must either reconfirm the details at the actual courthouse to ensure accuracy, or send a contemporaneous notice to the applicant at the same time, so they know that they are the subject of negative public records.  California is one state where any database ‘hit’ must be re-confirmed at the courthouse and ESR believes it is a best practice to reconfirm all database hits at he courthouse to guard against unfairly labeling someone as a criminal where their case has been dismissed, or they are the victim of identity theft or just happen to have the same last name as a perosn with a criminal record. 

Some states offer access to the state police or central state court databases.  Again, it takes a background screening expert to understand the value of such information on a state by state basis.  There is also a difference between state court searches and federal courts. 

All of this is just the tip of the iceberg.  For more details, see: http://www.esrcheck.com/services/services_detail.php

New Utah Privacy Laws Impact Employers and May Show Future Trend

Utah is the latest state to pass tough new privacy laws when it comes to Personally Identifiable Information (PII).

Utah passed a new law effective May 12, 2009 called ‘The Employment Selection Procedures Act.’  See: http://le.utah.gov/~2009S1/bills/hbillenr/hb1002.htm

The law prohibits an employer with more than 15 employees from collecting an applicant’s social security number, date of birth or driver’s license number before a job offer or before the time when a background check is requested.  In addition, if the person is not hired, the employer will not keep the information beyond two years. The employer also may not use the information for any other purposes and must maintain a “specific policy regarding the retention, disposition, access, and confidentiality of the information.” An applicant has the right to view the policy.

The idea appears to be to limit the flow of personal data before or unless it is needed and to destroy it if no longer needed.  For employers using paper applications, it creates an administrative burden since the employer needs to add another step to get the data required for a background check if an applicant moves forward in the hiring process.  However, electronic hiring procedures, such as the Applicant Generated Report system offered by ESR, solves this issue, since an applicant is only asked to provide confidential data only if the employer decides to perform a background check and the information only goes to the screening firm.

ESR provides Utah employers with a sample policy in the ESR proprietary 50 state guide available after logging onto the ESRnet system. 

The Utah law is part of a growing trend to restrict access to PII in order to prevent identity theft.  Some courts have attempted to restrict the access of identifying information in public records, which makes it harder for employers to receive accurate reports on a timely basis.