Questions about background check

Employers can ask all sorts of questions about your background during hiring. He or she may ask about your education, employment history, financial history and even your criminal record.

However, employers are not allowed to ask for your medical information until you get the job as well as your genetic information.

Also, when an employer asks about your background on genetics, disability, age, religion, sex, color, national origin and race, he or she must treat you the same as all the other applicants. Example, an employer is not allowed to ask for extra background information because you are of a different ethnicity or race.

Employees are also protected from retaliation. This means that an employer should not fail to employ you because you accused a previous employer of harassment or discrimination.

When is an employee’s consent required?

An employer needs your consent to obtain certain types of information such as credit report, military records and school transcripts.

Also, if an employer does not gather the records on his own but hires an outside investigator or agency to, it must get a written consent from you first. You do not have to give permission but when applying for a job and you fail to, the employer has the right to reject your application.

Secondly, if an employer fails to hire you, retain or promote you because of something in your background report, it should send you a copy of the report and a note indicating how to contact the company that made the report. This is because background reports often contain errors. If there is a mistake in your report, you can request the reporting company to fix it and then send a copy of the error free report to the employer. You should also inform the employer of the mistake.

The law protects applicants from being denied a job for the following additional reasons

• Credit reports

Due to the economic downturn in 2008, some states have laws that prohibit employers from discriminating employees based on his or her credit history.

• Unemployed status

Some states including Oregon and New Jersey prohibit employers from failing to hire applicants because they are unemployed when applying for the position.

• Criminal records

Also, some states limit the type of criminal records an employer can consider in making a hiring decision. For example employers are prohibited from failing to consider candidates with history of arrests that did not lead to conviction.

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Although state law varies it is standard procedure for employers who are within their legal rights of hire to do background checks on potential employees. This is to reasonably safe guard against any persons with culpable backgrounds who could become a liability to the company if their offense reigns contrary to the position they may hold. For example, a Bank Manager would not want to hire someone accused of robbery or fraud. Many positions come with some amount of confidentiality and trust of valuable resources. A company just wishes to ensure that whatever classified information and resources for which they are held responsible is being manger by the best person possible.

Outside of the obvious references, school records and past employers legitimate checks by the employers will include the following: Credit reports, Driving record, Criminal records, Medical records drug testing, sex offenders list and court records.

Federal laws concerning background checks is governed by the Fair credit reporting act (FCRA). This law is responsible for the regulation of outside reporting agencies, and consumer reporting agencies. The Employers will have to get your permission for a background check from these agencies. Please note that if based on the report the employer refuses to hire you or fires you as a result you are entitled to receiving a copy of said background check which can be used in your defense to these allegations. Also ensure that you have a copy of “A summary of your rights” under the fair credit reporting act to substantiate claims.

On a normal basis you have to pay to get a credit report. However, the following are instances where you could get the information for free.

• Person having taken action against based on your credit report.
• As a victim of identity theft and there is a fraud alert placed on you file as a result
• As an unemployed with the expectancy of applying for a job in 60 days

Remember you are entitled to request an annual credit report for free at annualcreditreport.com

Any discrepancies concerning wrong or outdated reports you should write to the credit reporting company and the information provider for expediency. Also based on statutes of limitation laws the credit report company cannot send out negative or incriminating reports seven or ten years old. Find more information on the FTC Consumer website.

If you suspect that there has been a violation to your privacy on the above premises, contact us at the United Employees Law Group with regard to work place laws and ethics and your rights as an employee.

Photo Credit: Shutterstock/Zoran Orcik

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In case a prospective employer figures out that you’ve got a conviction or arrest record, you may find it hard to compete, most especially in the recent tight job market. However, the better side of it is that in the state of California there are some legal rights meant to protect job seekers who have criminal records.

State and federal laws have placed some limits on how an employer can make use of the criminal records of a job seeker before finally deciding whether to consider the person or not.

Legal Protections for Job Seekers with Criminal Records in California

State laws in some cases offer protection rights for job seekers who have criminal records. The state of California has placed more restrictions on the employers when compared with other states in the US. For instance, employers in California are not entitled to ask job applicants about:

*Certain Marijuana Offenses:-

Employers are not allowed to ask applicants about marijuana convictions that are considered minor and which are more than 24 months old.

*Sealed Records:-

Employers are prohibited also from asking about convictions which have been statutorily eradicated, expunged or sealed.

*Diversion Programs:-

Employers in some scenarios are not entitled to ask about an applicant’s referral to participation in a post- trial or pretrial diversion program.

*Arrest Records:-

An employer is also not supposed to ask applicants about prior arrests which did not lead to conviction.

Federal Protections for an Applicant with Criminal Records

The FCRA i.e. Fair Credit Reporting Act impose obligations on employers which request background checks on criminal records and on the companies which offer them. Employers are required to do the following;

*Get applicant’s written consent on time

*Tell the job applicant if he or she intends in any way to disqualify him/ her based on content of the report. The employer should also ensure that he or she gives the job seeker several copies of the report.

These are only a few facts of what you need to know about California laws on employer use of Arrest records. For more information about the subject of interest, contact us.

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