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what is included in a background check?
background reports can range from a verification of an applicant's social security number to a detailed account of the potential employee's history and acquaintances. there is even some evidence that employers are now searching popular social networking web sites such as myspace and facebook for the profiles of applicants. an october 2007 survey from vault.com found that 44% of employers use social networking sites to obtain information about job applicants while 39% have searched such sites for information about current employees. read about "digital dirt" and the jobseeking process at [color=#1c26ce]www.abilitiesenhanced.com/digital-dirt.pdf
here are some of the pieces of information that might be included in a background check. note that many of these sources are public records created by government agencies.
- <li class=text14-black>driving records <li class=text14-black>vehicle registration <li class=text14-black>credit records <li class=text14-black>criminal records <li class=text14-black>social security no. <li class=text14-black>education records <li class=text14-black>court records <li class=text14-black>workers' compensation <li class=text14-black>bankruptcy <li class=text14-black>character references <li class=text14-black>neighbor interviews <li class=text14-black>medical records <li class=text14-black>property ownership <li class=text14-black>military records <li class=text14-black>state licensing records <li class=text14-black>drug test records <li class=text14-black>past employers <li class=text14-black>personal references <li class=text14-black>incarceration records
- sex offender lists
3. what cannot be in a background check report?
the federal fair credit reporting act (fcra) sets national standards for employment screening. however, the law only applies to background checks performed by an outside company, called a "consumer reporting agency" under the fcra. the law does not apply in situations where the employer conducts background checks inhouse.
your state may have stronger laws, such as california's investigative consumer reporting agencies act (
civil code 1786) and the california consumer credit reporting agency act (civil code 1785). in addition, many state labor codes and state fair employment guidelines limit the content of an employment background check. (for more on the fcra, see [color=#1c26ce]part 5
under the fcra, a background check report is called a "consumer report." this is the same "official" name given to your credit report, and the same limits on disclosure apply. the fcra says the following cannot
- <li class=text14-black>bankruptcies after 10 years. <li class=text14-black>civil suits, civil judgments, and records of arrest, from date of entry, after seven years. <li class=text14-black>paid tax liens after seven years. <li class=text14-black>accounts placed for collection after seven years.
- any other negative information (except criminal convictions) after seven years.
however, the above reporting restrictions imposed by the fcra do not
apply to jobs with an annual salary of $75,000 or more a year. (fcra 605(b)(3).
the most recent change to the fcra made criminal convictions reportable indefinitely. california still follows the seven-year rule (ca civil code 1786.18) as do some other states. to find the limit for reporting criminal convictions in your state, contact your state employment agency or office of consumer affairs. other laws that should be considered:arrest information.
although arrest record information is public record, in california and other states employers cannot seek from any source the arrest record of a potential employee. however, if the arrest resulted in a conviction, or if the applicant is out of jail but pending trial, that information can be used. (california labor code 432.7).
in california, an exception exists for the health care industry where any employer who has an interest in hiring a person with access to patients can ask about sex related arrests. and, when an employee may have access to medications, an employer can ask about drug related arrests.
- criminal history. in california, criminal histories or "rap sheets" compiled by law enforcement agencies are not public record. only certain employers such as public utilities, law enforcement, security guard firms, and child care facilities have access to this information. (california penal code 11105, 13300) with the advent of computerized court records and arrest information, however, there are private companies that compile virtual "rap sheets."
employers need to use caution in checking criminal records. information offered to the public by web-based information brokers is not always accurate or up to date. this violates both federal and california law when reported as such. also, in california, an employer may not inquire about a marijuana conviction that is more than two years old.
- workers' compensation. in most states including california, when an employee's claim goes through the state system or the workers' compensation appeals board (wcab), the case becomes public record. an employer may only use this information if an injury might interfere with one's ability to perform required duties. under the federal americans with disabilities act, employers cannot use medical information or the fact an applicant filed a workers' compensation claim to discriminate against applicants. (42 usc 12101).
in california, employers may access workers' compensation records after making an offer of employment. to gain access, employers must register with the wcab and confirm that the records are being accessed for legitimate purposes. although the agency may not reveal medical information and the employer may not rescind an offer due to a workers' compensation claim (california labor code 132a), employers sometimes discover that applicants have not revealed previous employers where they had filed claims. in such situations, employers often terminate the new hire because it appears they falsified the application.
- bankruptcies. bankruptcies are public record. however, employers cannot discriminate against applicants because they have filed for bankruptcy. (11 usc 525)
although these laws should prevent an employer from considering certain information, there is no realistic way for the applicant to determine whether such information will be revealed in a background check. this is particularly true for investigations conducted online where the information obtained from web-based information brokers might not be verified for accuracy or completeness.[color=#1c26ce]www.ftc.gov/os/statutes/fcra/nadell.htm
for example, if you were arrested but never convicted, a data search could reveal the arrest, but the investigator who compiled the information might not delve further into the public records to determine that you were acquitted or the charges were dropped. reputable employment screening companies always verify negative information obtained from data base searches against the actual public records filed at the courthouse.
can an employment application ask about things that should not be reported?
the fcra does not prohibit an employer from asking questions in an employment application. see ftc letters to nadell and sum:
for example, an employment application might ask if you have "ever" been arrested. the fcra says a consumer reporting agency cannot report
an arrest that from date of entry
was more than seven years ago. it does not
say the employer cannot ask the question.
how to handle such questions on an employment application is of real concern to many people, especially those concerned with a youthful mistake from the distant past.
state employment laws may limit the questions an employer includes on a job application. for example, in california an application may ask "job related questions about convictions except those that have been sealed, or expunged, or statutorily eradicated," but applications cannot ask "general questions regarding an arrest." [color=#1c26ce]www.dfeh.ca.gov/dfeh/publications/publicationdocs/dfeh-161.pdf
to learn about employment laws in your state, search the internet for “employment inquiries” followed by the name of your state. state and local equal employment opportunity agencies, along with federal eeo field offices, may also be located through the us equal opportunity commission web site. [color=#1c26ce]http://www.eeoc.gov/field/index.cfm
aren't some of my personal records confidential?
the following types of information may be useful for an employer to make a hiring decision. however, under the federal fair credit reporting act, the employer is required to get your permission before obtaining the records. (see prc fact sheet 11, "from cradle to grave: government records and your privacy," [color=#1c26ce]www.privacyrights.org/fs/fs11-pub.htm
- education records. under both federal and california law, transcripts, recommendations, discipline records, and financial information are confidential. a school should not release student records without the authorization of the adult-age student or parent. however, a school may release "directory information," which can include name, address, dates of attendance, degrees earned, and activities, unless the student has given written notice otherwise. (20 usc 1232g, [color=#1c26ce]www.ed.gov/offices/om/fpco/ferpa/index.html)
- military service records. under the federal privacy act, service records are confidential and can only be released under limited circumstances. inquiries not authorized by the subject of the records must be made under the freedom of information act. even without the applicant's consent, the military may release name, rank, salary, duty assignments, awards, and duty status. (5 usc 552, 552a) for more on military records, visit the national archives and records administration web site: [color=#1c26ce]www.archives.gov/facilities/mo/st_louis/military_personnel_records.html
- medical records. in california and many states, medical records are confidential. there are only a few instances when a medical record can be released without your knowledge or authorization. the fcra also requires your specific permission for the release of medical records. if employers require physical examinations after they make a job offer, they will have access to the results. the americans with disabilities act allows a potential employer to inquire only about your ability to perform specific job functions. (42 usc 12101)