A background check is a valuable way for an employer to determine whether an applicant is an appropriate fit for a position. By researching an applicant’s background, an employer may discover that the applicant has relevant skills and experience or, alternatively, may uncover an applicant’s history of poor performance. One key benefit to an employer of thoroughly checking an applicant’s background is protection from liability associated with negligent hiring and retention claims.
An employer may use many different methods to check an applicant’s background, however, some methods require an employer to comply with disclosure and authorization requirements. Depending on the nature of the position in question, an employer may choose to use one or all of the following forms of investigation.
A reference check is one of the easiest ways to learn the nature of an applicant’s qualifications. To be thorough, an employer should request that the applicant identify both character references and previous employer references. The employer should contact all of the applicant’s references.
Although the law does not require a written authorization to conduct a reference check, the employer should consider obtaining one to protect itself from potential claims. An employer may also want to request a waiver from the applicant to release former employers and the requesting employer from any claims relating to the reference check. With a waiver in place, former employers may provide more detailed information about an applicant than they would otherwise.
When an employer contacts an applicant’s reference, it should request information such as:
Although a former employer may not be willing to disclose information on all of these topics, the prospective employer defends itself against negligent hiring and retention claims by asking appropriate questions and recording the responses. An employer should also use the applicant’s completed application as a resource in its discussion with the reference.
A prospective employer should take careful notes during its discussion with an applicant’s reference. It should also document all unsuccessful attempts to contact references.
One of the easiest ways to learn about an applicant is to enter the applicant’s name in Google or a similar Internet search engine. The law does not require an employer to obtain the consent of a potential employee to conduct its own Internet search. An employer may learn helpful information about an applicant that sheds light on whether she or he is a fit for the position.
However, employers should be very careful when conducting Internet searches and relying upon information disclosed on the Internet. First, if an employer learns any information concerning the applicant’s protected class status (such as disability, race/national origin, age, etc.), the applicant may later claim that the employer failed to hire him or her because of that information. For obvious reasons, an employer should not use the information it learns from the Internet to make discriminatory employment decisions.
Second, an employer must be cautious in relying on information from the Internet. Websites or other individuals may post inaccurate information about an applicant. To the extent that an employer uses information that it learns from the Internet in making employment decisions, it should do so only in conjunction with other more reliable sources of information.
In August 2010, the Massachusetts legislature passed a law that substantially changed the requirements governing criminal record checks in Massachusetts. On October 13, 2018, the legislature amended the law to further limit the use of criminal record checks. Employers would be well advised to seek legal counsel before conducting such checks.
In May 2012, the state rolled out a new criminal record database, iCORI, which is available to all employers. Once an employer has registered, it may access iCORI records for any individual who has signed an acknowledgment form. Employers must retain the acknowledgment forms for at least one year from the date of the iCORI request and may not retain iCORI records for more than seven years after an employee’s last date of employment or the date of the decision not to hire an applicant.
In addition, an employer who seeks criminal records – from iCORI or otherwise – should be aware of the following new protections and limitations concerning criminal record checks:
An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer "no record" with respect to any inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer "no record" to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions..
Massachusetts law remains unchanged concerning criminal record information that an employer may never require an applicant or employee to disclose to it. This information includes the following:
For positions that would require the use of a company vehicle, an employer may want to review the driving records of applicants. An employer should check an applicant’s driving records before hire, and then periodically throughout employment. When checking the driving record of an applicant, the employer should confirm that the applicant has a valid driver’s license and review any driving violations.
An employer must tread carefully when it makes decisions based on an applicant’s driving record information. Under the Americans with Disabilities Act (ADA), alcohol-related convictions may not be used to discriminate against an applicant who the employer perceives to be an alcoholic. Also, as discussed below, if the employer uses a third-party, consumer-reporting agency to obtain this information, it must comply with the Federal and Massachusetts Fair Credit Reporting Act (FCRA).
Subject to certain notice and disclosure requirements, an employer may obtain credit checks of its employees or applicants. However, the Equal Employment Opportunity Commission (EEOC) has stated that credit checks may have an adverse impact on minorities. Therefore, an employer may want to limit the use of credit checks to positions for which there is a legitimate business necessity. For instance, a credit check for a restaurant cook who has no financial responsibilities would be inappropriate, but a credit check for a controller or accounts payable clerk may be reasonable. When an employer does choose to run a credit check on an applicant, the employer should apply the credit check uniformly to all applicants for the position. Typically, credit reports may only be obtained through third-party entities that prepare such reports for a fee.
The federal Fair Credit Reporting Act (FCRA) and Massachusetts law detail several requirements for employers that use consumer reports to make employment-related hiring, promotion, and termination decisions. The term “consumer report” is defined very broadly by the FCRA and state law to include any written, oral, or other communication from a consumer reporting agency bearing upon a consumer’s credit worthiness, standing, credit capacity, character, reputation, personal characteristics, or mode of living. It includes communications regarding motor vehicle history, criminal background, bankruptcy, and medical and credit history records that are used to assess an individual’s qualifications for employment. The FCRA and state law only apply to consumer reports that are generated by a consumer reporting agency; it does not apply to an employer’s own reference checks such as its contact with an applicant’s former employers or its review of public records or documents.
An employer that fails to follow the requirements of the FCRA or state law may be liable for civil fines or damages, and may face criminal prosecution.
To comply with the FCRA or state law, an employer should institute the following standard procedures:
Guidance from the Federal Trade Commission states that an employer may combine the written notice and consent in a single form; however, no other language should be included on the form. The form on the following page is a sample authorization to obtain information from a consumer reporting agency according to the FCRA.
Before taking any adverse action against an employee (such as declining to hire, promote, or retain the employee) based on information from a consumer report, the employer must first:
After taking any adverse action based in whole or in part on information from a consumer report, the employer must provide the following oral, written, or electronic notices to the individual:
The form labeled Sample FCRA Adverse Employment Action Letter under the files tap at the top is a sample letter that should be provided to applicants and/or employees who are subject to adverse employment action based on a consumer report.