Background Checks to Face Challenges in New Year



With new legislation concerning background checks and privacy rights, as well as continued economic hardship for many Americans, 2016 has laid the groundwork for a unique set of challenges facing employers and screening services in the coming year. Kelly O. Scott and Patrick A. Fraioli Jr. of write that HR departments must prepare themselves to scrutinize their current employment practices more carefully as they navigate the new privacy laws.

Here is what you need to be aware of as we usher in 2017, concerning:

  • Credit checks
  • Criminal checks
  • Confidentiality
  • Social Media

Credit Checks

credit-check-1038x500According to SHRM research, about half of all employers use the results of credit checks as a criteria for applicant eligibility, but an increasing number of states are prohibiting the practice of making employment decisions based on credit reports. These states include California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. The reasoning is this: in today’s economic climate, credit screening may be more likely to reflect hardship as opposed to a lack of judgement.

Dismissing applicants on this basis is deemed to be unfair, but even those employers who do use credit checks are required by the Fair Credit Reporting Act (FCRA) to provide:

  • A copy of the credit report
  • A written description of rights under the FCRA
  • Opportunity to correct/explain inaccuracies before the hiring decision is made

Criminal Checks

The Equal Employment Opportunity Commission (EEOC) has made inroads in the past several years in their efforts to limit the extent that employers can make hiring decisions based on an applicant’s criminal history. These limitations include:

  • Laws requiring companies to establish applicant eligibility prior to asking about their criminal background (passed in at least 24 states and 150 cities)
  • FCRA prohibiting reporting of convictions after seven years
  • Specific restrictions on the types of inquiries employers may make
  • Prohibition of inquiries regarding sealed or expunged convictions and juvenile crimes
  • Prohibition of using sex-offender info obtained from Megan’s Law websites


The Fair and Accurate Credit Transactions Act (FACTA) requires the proper disposal of consumer data used for a business purpose. FACTA expects employers, who must keep applicant information by law including screening reports, to ensure that such data is protected from unauthorized access or use.

Social Media

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It is an established expectation to secure an applicant’s written permission before gathering their background information, but the protocols for conducting social media background checks are still evolving. For example, about half of all states prohibit employers from requiring access to an applicant’s Twitter or Facebook accounts. The reason being that it is difficult to combat the claim of hiring discrimination if the hiring manager becomes aware of the applicant’s political or religious views. Some companies use third party services to scan social media sites on their behalf, but it is important to be increasingly aware of your company’s procedures for gathering insight on candidates over social media.

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