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What Should Job Candidates Know about Employer Background Checks?

February 7th, 2022
Philadelphia Employment Discrimination Lawyers at Sidney L. Gold & Associates, P.C., Protect Job Applicants and Employees from Unfair Workplace Practices.

Whenever you apply for a job, you must provide personal information to the potential employer. Aside from your home address, phone number, and work experience, you might have to add your educational background and references. If you are lucky enough to get an interview, you will be asked to provide more details about yourself. Initiating background checks might be standard protocol for some firms when making personnel decisions, and necessary depending on the job responsibilities. However, companies cannot do these checks without an applicant’s consent. Although employers seemingly have the most control over their hiring processes, job candidates are still entitled to certain rights.

What Happens When Employers Break Background Check Laws?

As one might expect, many companies have not followed the rules about carrying out background checks on job applicants. The Fair Credit Reporting Act (FCRA) is a federal law stipulating that employers obtain prior written consent from job candidates before conducing background checks. In addition, the Act gives applicants the right to challenge the content of a background report. During the past decade, employers and companies that provide background checks have been sued repeatedly and paid out well over $300 million in settlements related to this kind of litigation. Companies that have faced lawsuits such as this include Wells Fargo, Target, Amazon, FedEx, Sephora, Costco, Whole Foods, and Home Depot.

Job applicants have sued those and other companies under FCRA provisions. This law was designed to protect the privacy, fairness, and accuracy of the information that is on file with credit bureaus and other consumer reporting agencies. This data not only includes credit information; it can also contain legal judgments and criminal histories. The most common claims made by these job seekers were that the potential employers did not get their permission to obtain the reports/and or did not provide copies to the applicants once the reports were received.

Not providing job applicants with written disclosures about background checks could indeed be grounds for a suit. These disclosures are supposed to let applicants know that the report will be used to obtain information about the person’s general reputation, mode of living, personal characteristics, and basic character. Once the report is completed, the applicant must then be given a copy before the employer can take an action based on the information in it. This provides the applicant with the opportunity to challenge any information in the report.

If an applicant or employee’s background report is initiated or used to make an employment decision, the employer must also comply with other federal laws in place that prohibit discrimination. These laws are administered by the Equal Employment Opportunity Commission (EEOC). Employers cannot discriminate against others based on their race, religion, national origin, color, genetic information, age (40 and over), disability, pregnancy, and other protected categories. The Federal Trade Commission (FTC) is the agency that enforces the FCRA, and there might be additional state and local laws that apply to background checks.

Have There Been Lawsuits about Employer Background Checks?

In 2018, Amazon was the focus of a class action lawsuit that involved 454,000 job applicants. In this case, the lead plaintiff was allegedly denied a job based on information contained in a background report. Apparently, the company never gave him a copy of his background report, and the hiring decision was based on that. It was found that Amazon was in violation of the FCRA; they later agreed to a settlement. An earlier case involved a man who sued Wells Fargo; he asserted that the company did not get his permission to obtain a consumer report when he was being interviewed. He was denied the job, and subsequently joined a class action suit that settled for $12 million.

Background checking companies are not immune from breaking laws, either. One example of this is CoreLogic National. They allegedly carried out reports on individuals but neglected to use their birth dates. This increased the chances of mistaken identities and misinformation. As a result, a plaintiff sued, claiming that CoreLogic falsely reported that the plaintiff was convicted of a felony. How do things like this happen? If a job applicant has the same first and last name as a criminal and the birth date is not used, the criminal history could be mistakenly provided in the applicant’s report.

IntelliCorp Records is another background checking company that was targeted for a lawsuit. They ended up agreeing to an $18.6 million dollar settlement in a class action suit of 100,000 litigants. In this case, IntelliCorp was accused of providing companies with incomplete, outdated, and incorrect information in their reports. It is not unusual for these companies to mix up information, especially when there are no birth dates and/or Social Security numbers available or provided.

What Do Background Checks Include?

Background checks are used by many kinds of employers, and you can expect to have one when applying for jobs that involve working with sensitive information, property, or finances. The checks are usually done to verify if job applicants have criminal histories, their employment histories, and to confirm their identities. Some screenings will also search for court records, credit histories, driving records, medical records, school records, and to see if applicants are on sex offender lists. Depending on the employers, applicants may also have to complete drug tests or provide education verification, professional qualification verification, and professional and personal records.

It is wise to prepare for the possibility of a background check before applying for jobs. To do this, you can request a copy of your credit report from websites such as Equifax and Experian; be aware that you may have to pay for this in most instances. You can also make sure that you have copies of your diplomas, certificates, academic transcripts, and pay stubs, as well as contact information for your past employers and references. Be sure to contact these people in advance to let them know that your prospective employers may be reaching out. Interviewers and recruiters also check job candidate social media profiles, so go through your accounts and make sure they are all private. Also be as honest as possible during the interview process. If you are aware of something that will show up in your background check, it may be wise to discuss it up front.

What if I Think the Employer Has Violated the Law?

Employers are allowed to perform background checks, but only if they receive your written permission first. Should you refuse, the company may be within their legal rights to terminate the hiring process. They might ask you why you refused, and your response is up to you. Some companies will share their confidentiality policies at this point, and for some positions background checks are mandatory. However, if a prospective employer does not mention the background check and carries it out without your knowledge, or if they do not share the report information with you, they may be in violation of the law.

If the employer has singled you out for a background check but has not required others applying for the same position to do so, they could be accused of discriminatory hiring practices. The EEOC may be able provide advice should this be the case. Pennsylvania also has laws that protect job applicants; employers are not permitted to consider a job applicant’s criminal history, unless the individual’s previous criminal offenses have a direct relationship to the particular employment position. If it is a public sector job, companies cannot inquire about a job applicant’s criminal history on job applications for non-civil service positions.

Philadelphia Employment Discrimination Lawyers at Sidney L. Gold & Associates, P.C., Protect Job Applicants and Employees from Unfair Workplace Practices

If you believe that a prospective or current employer has treated you unfairly and broken federal, state, or local employment laws, get in touch with the experienced Philadelphia employment discrimination lawyers at Sidney L. Gold & Associates, P.C.  We will explain your rights, and we will investigate every case thoroughly. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and Southeastern Pennsylvania, including Wilkes-Barre, Scranton, Northeast Philadelphia, Bucks County, Chester County, Delaware County, and Montgomery County.

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