Are Your Company’s Employment Background Check Policies Legal | Aiman-Smith & Marcy
Call us today at (800) 798-8498

Are Your Company’s Employment Background Check Policies Legal?

One of the most horrifying experiences in a professionals’ life is the realization that your employer is breaking the law. And we’re not talking about a simple slip in regulation maintenance. Every now and then (more frequently than we like to admit) a manager or even an exec chooses a path that they must know is against the law, and they make this choice for unethical reasons. Fudging financial documents, gendered work assignments, or skimping on safety features are all common employer misconduct.

But if you’re part of the hiring process, you are in a unique position to unveil a very common illegal decision employers make: To unethically use background checks when selecting candidates to hire. Today, we’re here to highlight some of the biggest signs that your company’s employment background check policies are both breaking the law and disadvantaging good candidates.

1) Candidates are Not Told There Will Be a Background Check

Any time an employer runs a background check, they must tell the subject (job candidate) about each check they will do (employment, credit, criminal) and get written permission to do these checks. They must also provide a free copy of background check results to candidates upon request, and make requesting a copy a check-box option on the permission forms. No secret background checks are allowed.

2) Candidates are Asked to Pay for Their Background Checks

Under no circumstances can candidates be asked to pay for their background checks. Any company that does this is usually running a scam that asks every candidate to pay, effectively fleecing anyone who is not selected whether or not a background check is run. But even if your company only runs one check per hire, the cost is on them. They cannot legally offload this to candidates.

Not to mention, any kind of ‘application fee’ can be used as a Jim Crow Law style discrimination to ‘weed out’ candidates who are struggling financially.

3) Background Checks are Run Before a Job Offer is Made

In fact, employers are only allowed to perform a background check after they have made a job offer (contingent on the check) and the candidate has accepted. This means that employers, even on their own dime and “with permission” from the application form cannot make their final decision based on comparative background checks. They have to like someone and plan to hire them directly before a check can be made.

4) There is a Blanket Disqualification for Any Criminal Background Results

California is a “Ban the Box” state meaning that blanket refusal based on ‘any’ criminal background is considered prejudiced. Because some populations, like African Americans, are disproportionately charged and convicted of small crimes, a blanket disqualification for criminal record is also a way to enforce racial and ethnic hiring bias. The box being banned is the application question “Have you ever been convicted of a crime?” which is too broad to be considered a fair hiring basis.

5) The Disqualifying Factors Can Be Traced to Hiring Bias

In Ban the Box states, employers are required to define what a disqualifying background check detail might be. Like a history of financial fraud for a bank job. But these qualifications are up to the employer to determine, and sometimes their choices of disqualifying factors are used to back their hiring biases instead of relating directly to the job. For example, refusing to hire anyone with outstanding debts, who has lived in the ‘bad part of town’, or anyone who shoplifted as a teenager are all ways to subtly refuse to hire people who are from poorer or ethnically specific backgrounds.

6) The Disqualifying Factors Do Not Directly Relate to the Job

In fact, employers have to be very strict about their decisions based on background checks. Most disqualifications will be considered unlawful and unethical unless they relate directly to the job. You might want to bar shoplifters for an inventory management job. But teen shoplifting should not be a disqualification for, say, a driving position that doesn’t handle merchandise. A past instance of credit card fraud might keep someone from being hired in a financial career, but not for stocking boxes. Keep a very close eye on which background details are being used for hiring decisions.

7) Results are Not Vetted After Receipt

Employers are also required to make sure the information they are acting on is current and lawful. Private background checkers don’t always get the right information. They may have details that should have been expunged by the court, or items that lawfully should have expired from background checks. Or arrests that are too old to legally appear because they did not end in convictions. They may even have information on the wrong person with a similar name. It is an employer’s job to vet the information they get once they get it, before making any decisions.

8) Candidates Are Not Allowed to Clarify Results

Finally, if your company is about to cut a candidate loose because of a background check result, a candidate must be given a chance to address the situation. If anything about the background check is inaccurate or unlawfully included, the candidate should be allowed to make that clear, and no decisions can be made on unlawful background results. Candidates should also be allowed to put past convictions in perspective, backed with facts, which may erase the reason for disqualification. For example, they were charged but not convicted of mail fraud after helping their sick grandmother pick up her mail without signed permission.

Is your employer unlawfully conducting or using background checks? Have you been confronted with unlawful use of background checks in your job search? If the answer to either of these questions seems to be “Yes”, contact us today. Here at Aiman-Smith & Marcy, we are dedicated to standing up to illegal and unethical actions from big companies for the sake of current and future employees. Whether you have witnessed or been subject to an illegal use of California employment background checks, we can help.