In order to make an informed decision as to the suitability of a prospective employee, most employers consider it necessary to conduct one or more of the following checks into an applicant’s background: employment history, education, criminal record, financial history, medical history and, increasingly, an applicant’s use of online social media.
But employers are having to tread ever more carefully, as a network of legal tripwires, dictating what checks can be done at various stages in the hiring process, is spreading across the US.
Nationwide, more than 150 cities and counties and 27 states have adopted what are widely known as “ban the box ” laws, which force employers to remove the conviction history question from their job applications and delay the background check inquiry until later in the hiring process. This is to ensure employers consider a job candidate’s qualifications first, without the stigma of a criminal record hindering the applicant’s chances. The latest state to join this so-called “movement” is Utah , whose law became effective May 9.
California has gone one step further . California’s Department of Fair Employment and Housing recently enacted regulations prohibiting employers in California from using an applicant’s/employee’s criminal background history in making employment decisions. An employer must justify its use of a criminal background check policy that has an adverse impact on a protected class — such as individuals of a particular race, national origin or gender — as job-related and consistent with business necessity.
Meanwhile, New York City  has passed a new law forbidding inquiries into applicants’ salary histories (with very limited exceptions). Employers are forbidden to inquire into the current or prior wages of an applicant or to rely on such salary history in negotiating terms of employment. This doesn’t preclude lawful background checks or prevent the employer from discussing expectations of salary, benefits or other compensation the employer is willing to offer to a prospective employee. In addition, the employer may verify the applicant’s salary history “where an applicant voluntarily, and without prompting, discloses” their salary history.
And for any employer wishing to determine whether an applicant will fit in with the company’s values or culture, 25 states have enacted laws to prevent  employers from requesting passwords to personal Internet accounts to get or keep a job.
Employers may use an applicant’s or employee’s background information to make an employment decision, but in doing so they must comply with federal laws that protect applicants and employees from discrimination based on race, color, national origin, sex, religion, disability, genetic information (including family medical history), and age (40 or older).
Ask This, Not That
Medical. Unless an employer is asking for medical or genetic information, it’s not illegal to ask questions about an applicant’s background, or to require a background check. However, employers may only ask for medical information once an offer has been made, and they cannot request genetic information — including family medical history — except in very limited circumstances.
Financial. In addition, an employer may carry out a financial credit check, but if background checks are run through a company in the business of compiling background information, employers must comply with the Fair Credit Reporting Act. The employer must inform the applicant, in writing in a stand-alone document, that information contained in a background check might be used for decisions about his or her employment, and the employee must have given written permission for the check to be carried out. If an adverse action is taken on the basis of a report, the individual must be given a copy of the report and information about his or her rights to correct the accuracy of the report.
Citizenship. The antidiscrimination provision of the Immigration Reform and Control Act prohibits employers from discriminating against an applicant because he or she is not a US citizen. Rather than asking about citizenship, employers may ask if an applicant is legally qualified to work in the United States. The Form I-9, rather than an employment application, is the appropriate mechanism to determine an applicant’s citizenship status.
Navigating the Minefield
While a diligent employer must follow federal and state rules, the best approach is to look at the process from an applicant’s viewpoint. No one likes to be turned down for a job, or worse, have a job offer withdrawn on the basis of something they consider irrelevant.
Asking for graduation dates from an applicant more than 40 years old, where this has little or no bearing on the skills required to do the job, may turn a candidate for a job into a litigant wanting revenge! Even if there was a good business reason for the question, failing to articulate what this is, and the valid reasons behind the job refusal, may leave some candidates assuming the decision was for an unlawful reason.
If the information sought from a candidate or obtained from a check about the candidate has no bearing on whether an individual can do the job competently, and cannot be justified as necessary for sound business reasons, then it probably shouldn’t be asked.