By: Lisanne L. Mikula, Esquire
Conducting background checks on prospective and current employees can help an employer maintain a productive workforce. Except for certain restrictions relating to medical and genetic information, it is not illegal for an employer to ask questions of an employee or applicant regarding his or her work history, education, criminal record, financial history or use of social media or to require a background check. Employers must be careful, however, to conduct background checks and utilize information obtained from them in a way which ensures compliance with federal, state and local laws.
The Fair Credit Reporting Act
Employers who utilize the services of a company in the business of compiling background information must comply with the provisions of the Fair Credit Reporting Act (FCRA). Applicants and employees must be notified in writing if their employer will be conducting a background screening and that the information will be used to make employment decisions. This disclosure and consent to a background check must be a “clear and conspicuous” stand-alone document-it cannot be part of an employment application. Further, the FCRA strictly limits the information which may be included on the disclosure form.
If an employer sees activity on a background check that would contribute to an adverse employment determination, the FCRA requires an employer to-within three days-provide the applicant or employee a pre-adverse action notification which complies with the requirements of the FCRA and which allows the employee or applicant a reasonable period of time to dispute the background check findings. Even if there are no disputes raised regarding the background check findings, the employer must provide a notification in compliance with the FCRA’s specifications that advises the applicant or employee of the adverse employment action and their rights regarding the background check.
Federal and State Anti-Discrimination Laws
Employers who request or use background information to make employment decisions must do so in a way that does not discriminate against the employee or applicant on the basis of race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). Employers should exercise caution when requiring background checks for some-but not all-employees or applicants. If the requirement that only certain employees or applicants submit to a background check disproportionately falls on employees and applicants of a particular racial or ethnic class, for example, the employer could face a claim of discrimination due to the disparate impact felt among that class of employees.
Pennsylvania Criminal History Record Information Act (CHRIA)
Under the CHRIA, whenever an employer is in receipt of an employment applicant’s criminal history record information file, the employer may use information relating to felony and misdemeanor convictions only to the extent to which they relate to the applicant’s suitability for employment in the position for which he or she has applied. The employer must notify the applicant in writing if the employer decides not to hire the applicant based upon based upon the results of the criminal history report
The CHRIA does not permit an employer to base an employment decision on the fact that an applicant has been arrested but not convicted. This corresponds to the interpretation of federal and state anti-discrimination laws which recognizes that persons of certain races or national origins are disproportionately arrested, and the use of arrest records for employment decisions can disparately impact those persons.
Philadelphia Fair Hiring Law
Except for employers who are subject to more stringent restrictions regarding their employees’ criminal history information-such as, for example, schools, nursing homes, and hospitals-employers in Philadelphia are more limited in their ability to use criminal history information when making employment decisions.
Generally, Philadelphia employers may not ask about an applicant’s criminal record on job applications or in interviews and can only run a background check once they have extended an offer of employment subject to the background check. An applicant who is rejected for employment based on a criminal record must be notified in writing and provided 10 days to explain the conviction, or to prove that the record is inaccurate.
An offer of employment cannot be rescinded if the criminal background check reveals an applicant has not been convicted or incarcerated in the past seven years. Even if the applicant has been convicted or incarcerated in the past seven years, a Philadelphia employer can only take back the job offer if the conviction is so related to the job such that hiring the applicant would be an unacceptable risk.
The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Contact Lisanne L. Mikula, Esquire at 610-565-5700, or send her an e-mail at [email protected].
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