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pre-employment background checks
``` Although the enclosed fact sheet from The Privacy Rights Clearinghouse only applies to California, it might provide a model for other jurisdictions worldwide.
The Privacy Rights Clearinghouse has a new gopher of useful legal and practical stuff about privacy. Telnet to teetot.acusd.edu (or 192.55.87.19) and log in as "privacy".
You can now reach the Privacy Rights Clearinghouse's useful gopher directly at gopher.acusd.edu. You'll find PRC under menu item 4, USD Campus-Wide Information System.
Date: Wed, 21 Sep 1994 14:24:47 -0700 (PDT)
From: Christine Harbs
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The Privacy Rights Clearinghouse The Center for Public Interest Law 5998 Alcala Park San Diego, CA 92110 (619) 260-4806 (619) 260-4753 (fax) e-mail prc@teetot.acusd.edu gopher gopher.acusd.edu
Hotline: +1 800-773-7748 (Calif. only) +1 619-298-3396
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Fact sheet No. 16 Copyright 1994, Center for Public Interest Law August 1994
Employment Background Checks: A Jobseeker's Guide
**Why would an employer want to do a background check?
Whether you are hired or promoted for a job may depend on the information gathered by the employer in a background check. Employers use them to verify the accuracy of information provided by jobseekers. Background reports may also uncover information left out of the application or interview.
Today, more employers are being sued for "negligent hiring" for not checking carefully enough into the background of a potential employee. If an employee's action hurts someone, the employer may be liable. That is one reason more background checks are being conducted.
The "information age" also accounts for the increase in background checks--the availability of computer databases containing millions of records of personal data. As the cost of searching these sources drops, employers are finding it more feasible to conduct background checks.
**I don't have anything to hide. Why should I worry?
While some people are not concerned about background investigations, others are uncomfortable with the idea of an investigator poking around in their personal history. In-depth background checks could unearth information that is irrelevant, taken out of context or just plain wrong.
A further concern is that the report might include information that is illegal to use for hiring purposes or which comes from questionable sources. Since in most cases employers are not required to tell applicants that a background check is being done, jobseekers may not have the opportunity to respond to negative or misleading data.
**What types of information might be 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. Here are some of the pieces of information that might be included in a background check:
**Which companies conduct background checks?
There are many companies that specialize in conducting pre- employment background checks. They typically use public records databases to compile reports. The following is a partial list of companies that perform a variety of services for employment background checking: Avert, Interfact, Equifax Employment Services, CDB Infotek, Employers Mutual Assoc., Employers Information Service, Trans Union, Information Resource Service Co., Pinkerton Security & Investigation Services.
With the information age upon us, it is easier for employers to gather background information themselves. Much of it is computerized, allowing employers to "log on" to public records and commercial databases directly through commercial online services.
Employers may also create a "clearinghouse" of information about potential employees. A group of employers establish a data exchange program to screen applicants. The database is comprised of information submitted by the member companies about their employees. When a jobseeker submits an application to a member company, that employer will check with the clearinghouse for information on the applicant.
*What types of information can't* the employer consider?
Federal and state laws limit the types of information employers can use in hiring decisions.
* Arrest information. Although arrest record information is public record, in California employers cannot seek out 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)* 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. With the advent of computerized court records and arrest information, however, there are private companies that compile virtual "rap sheets." (California Penal Code @@ 11105, 13300)* Workers' compensation. When an employee's claim goes through the state system or the Workers' Compensation Appeals Board, the case becomes public record. Only if an injury might interfere with one's ability to perform required duties may an employer use this information. 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)* Bankruptcies. Bankruptcies are public record. However, employers cannot discriminate against applicants because they have filed for bankruptcy. (11 USC @525)
**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, the employer is required to get your permission before obtaining the records. (For more information, see PRC Fact Sheet No. 11, "From Cradle to Grave: Government Records and Your Privacy.")
* 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 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. (California Education Code @@ 67100, 76200; 20 USC @1232g)* Military service records. Under the federal Privacy Act, service records are confidential and can only be released under limited circumstances. Inquiries 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)* Medical records. In California, medical records are confidential. There are only a few instances when a medical record can be released without your knowledge or authorization. If employers require physical examinations after they make a job offer, they 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. (California Civil Code @ 56.10; 42 USC @12101)
There are other types of questions such as age and marital status and certain psychological tests that employers cannot use when interviewing. These issues are beyond the scope of this fact sheet. If you have further questions, look under "For more information" at the end of this fact sheet or call the PRC Hotline.
**What can my former employer say about me?
Often a potential employer will contact an applicant's past employers. A former boss can say anything [truthful] about your performance. However, most employers have a policy to only confirm dates of employment, final salary, and other limited information. California law prohibits employers from intentionally interfering with former employees' attempts to find jobs by giving out false or misleading references. (California Labor Code @ 1050)
Documents in your personnel file are not confidential and can be revealed by an employer. Only medical information in a personnel file is confidential. If you are a state or federal employee, however, your personnel file is protected under the California Information Practices Act or the federal Privacy Act of 1974 and can only be disclosed under limited circumstances. Under California law, employees have a right to review their own personnel files, and make copies of documents they have signed. (California Civil Code @ 56.20; California Labor Code @@432, 1198.5; California Government Code @ 1798; 5 USC @552a)
**Does the applicant have a right to be told when a background check is requested?
The only times an applicant must be told if a background check is conducted is if the employer requests an "investigative consumer report" or a credit report. The investigative consumer report may contain information about your character, general reputation, personal characteristics and lifestyle. The information in the report is typically compiled from interviews with neighbors, friends, associates and others who might have information about you.
Under both California and federal law, the applicant must be notified if an employer requests an investigative consumer report. (California Civil Code @ 1786; 12 USC @1681d. Also see Fact Sheet No. 6, "How Private is My Credit Report?")
An employer can also order a copy of your credit report, which is less detailed than an investigative report. However, a credit report can still tell an employer a lot about you. It may contain public records information such as court cases, judgments, bankruptcies and liens; also, outstanding credit accounts and loans, and the payment history for each account. Credit report entries remain in the report for up to ten years.
In California, if an employer checks your credit file, you must be notified and given an opportunity to see the file. Also, when a report is requested for employment purposes, the credit bureau must block all references to age, marital status, race, religion and medical information. Although federal and state laws allow credit bureaus to include criminal record information, it is an industry policy not to do so. (California Civil Code @@ 1785.18, 1785.20.5)
**What can the job applicant do to prepare?
Although you cannot prevent an employer from doing a background check, you can take steps to be ready for questions the employer might ask once the investigation is conducted.
* Order a copy of your credit report. If there is something you do not recognize or that you disagree with, dispute the information with the creditor or credit bureau before you have to explain it to the interviewer. (See PRC Fact Sheet No. 6, "How Private is My Credit Report?")* Check public records files. If you have an arrest record or have been involved in court cases, go to the county where this took place and inspect the files. Make sure the informa-tion is correct and up to date. Request a copy of your driving record from the Department of Motor Vehicles (DMV), especially if you are applying for a job that may involve driving.* Ask to see a copy of your personnel file from your old job. Even if you do not work there anymore, you have a right to see your file until at least a year from the last date of employment. You are allowed to make copies of documents in your file that have your signature on them. (California Labor Code @ 432.) You may also want to ask if your former employer has a policy about the release of personnel records. Many companies limit the amount of information they disclose.* Read the fine print carefully. When you sign a job application, you may also be signing a statement that waives your right to a copy of your credit report. You might also be authorizing the disclosure of other personal data, such as educational records, medical records and financial data. Unfortunately, jobseekers are in an awkward position, since refusing to authorize a background check may jeopardize the chances of getting the job.* Tell neighbors and work colleagues, past and present, that they might be asked to provide information about you. This helps avoid suspicion and alerts you to possible problems.* If you feel comfortable, ask the interviewer about the company's employee privacy policies. Find out if the potential employer plans to do a background check, and ask to see a copy.
**For more information
* Equal Employment Opportunity Commission (see the Government Pages in your phone book).* California Labor Commission (see the Government Pages in your phone book).* Pacific Disability and Business Technical Assistance Center for questions about the Americans with Disabilities Act, (800) 949- 4232.* Documented Reference Check, (800) 742-3316 (verifies references of former employers; fee charged).
If you have additional questions about privacy, contact the PRC Hotline at (800) 773-7748.
Copyright 1994 Center for Public Interest Law August 1994
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The Clearinghouse is a nonprofit organization dedicated to educating Californians about personal privacy issues. It is funded by a grant from the Telecommunications Education Trust and operates under the auspices of the University of San Diego School of Law's Center for Public Interest Law.
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